UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-----------------------------------------------------------------------x

LAKISHA REYNOLDS, GEORGINA BONILLA,

APRIL SMILEY, LUE GARLICK, ADRIANA

CALABRESE, JENNY CUEVAS, and ELSTON

RICHARDS, on their own behalf and on others

similarly situated,

Plaintiffs,

- against - 98 CV __________

RUDOLPH GIULIANI, as Mayor of the City of

New York; JASON TURNER, as Commissioner

of the New York City Human Resources Administration

BRIAN J. WING, as Commissioner of the New York

State Office of Temporary and Disability Assistance;

and BARBARA DEBUONO, as Commissioner

of the New York State Department of Health,

Defendants.

-----------------------------------------------------------------------x

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' MOTION

FOR A TEMPORARY RESTRAINING ORDER,

PRELIMINARY INJUNCTIVE RELIEF

AND CLASS CERTIFICATION

HENRY A. FREEDMAN

WELFARE LAW CENTER, INC.

Marc Cohan, Director of Litigation (MC 2612)

Rebecca Scharf, of Counsel (RS 4166)

275 Seventh Avenue

New York, New York 10001

Tel. (212) 633-6967

YISROEL SCHULMAN (YS 3107)

NEW YORK LEGAL ASSISTANCE GROUP

Constance P. Carden, of Counsel (CPC 7616)

Randal S. Jeffrey, of Counsel (RSJ 3396)

130 East 59^th Street, 14^th Floor

New York, New York 10022

Tel. (212) 750-0800, Ext. 123

THE LEGAL AID SOCIETY

CIVIL DIVISION

Scott A. Rosenberg, Director of Litigation (SAR 5579)

Christopher D. Lamb, of Counsel (CDL 8145)

Hwan-Hui Helen Lee, of Counsel (HHL 8856)

Anne K. Callagy, of Counsel (AKC 5562)

Joshua E. Goldfein, of Counsel (JEG 9651)

Esperanza Colon, of Counsel (EC 7750)

Adriene L. Holder, of Counsel (ALH 1872)

90 Church Street

New York, New York 10007

Tel. (212) 577-3300

KENNETH ROSENFELD (KR 8078)

NORTHERN MANHATTAN IMPROVEMENT CORP.

76 Wadsworth Avenue

New York, New York 10036

Tel. (212) 822-8306

Attorneys for Plaintiffs and the Plaintiff Class

TABLE OF CONTENTS

PRELIMINARY STATEMENT 1

STATUTORY AND REGULATORY SCHEME 3

STATEMENT OF FACTS 9

ARGUMENT 16

I. THE DEFENDANTS SHOULD BE PRELIMINARILY ENJOINED FROM VIOLATING FEDERAL AND STATE LAWS GOVERNING THE RIGHT OF PLAINTIFFS AND PLAINTIFF CLASS MEMBERS TO APPLY FOR BENEFITS. 16

A. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS 16

1. Defendants Unlawfully Deter Plaintiff Class Members

From Applying for Food Stamps, Medicaid, and Cash

Benefits and Failing to Process Applications in

Conformity with Legal Mandates. 16

a. Defendants Deter Plaintiff Class Members from

Applying for Food Stamps in Violation of Federal

Statute and Regulation 19

b. Defendants Deter Plaintiff Class Members from

Applying for Medicaid Benefits in Violation of

Federal Statute and Regulation 21

c. Defendants Deter Plaintiff Class Members From

Applying for Cash Assistance in Violation

of State Law 23

2. City Defendants' Operation of the Job Centers

Violates the Due Process Clause of the United

States Constitution. 24

a. Plaintiff Class Members Have a Property

Interest in the Receipt of Food Stamps,

Medicaid, and Cash Assistance. 25

• Defendants' Conduct Denies Plaintiffs and

Plaintiff-Class Members of Due Process

of Law 28

• Defendants Deprive Plaintiffs of

Due Process of Law by Misinforming

Them of Their Entitlement to Benefits 28

• Defendants Deprive Plaintiffs of

Due Process Right by Failing to Provide

Adequate Notice of Denial and an

Opportunity to be Heard 30

B. DEFENDANTS' CAUSE PLAINTIFFS AND PLAINTIFF CLASS MEMBERS IRREPARABLE HARM. 31

1. Defendants' Conduct Causes Plaintiffs and Their

Children to Go Hungry. 32

2. Defendants' Conduct Fails to Address People's

Housing Emergencies. 35

3. Defendants Conduct Causes People Seeking Assistance

to Go Without Other Resources. 36

C. THE BALANCE OF HARDSHIPS FAVORS THE PLAINTIFFS 41

D. THE APPROPRIATE SCOPE OF THE PRELIMINARY INJUNCTION 42

II. THE PROPOSED PLAINTIFF CLASS SHOULD BE CERTIFIED. 45

A. THE CLASS IS SO NUMEROUS THAT JOINDER

OF ALL MEMBERS IS IMPRACTICABLE. 45

B. THERE ARE QUESTIONS OF LAW AND FACT

COMMON TO THE PLAINTIFF CLASS. 46

C. THE CLAIMS OF THE NAMED PLAINTIFFS

ARE TYPICAL OF THE CLAIMS OF THE

PLAINTIFF CLASS. 47

D. THE NAMED PLAINTIFFS WILL FAIRLY AND

ADEQUATELY PROTECT THE INTERESTS OF

THE PLAINTIFF CLASS. 47

E. THIS ACTION MEETS THE REQUIREMENTS

OF RULE 23(b)(2) OF THE FEDERAL RULES

OF CIVIL PROCEDURE. 48

CONCLUSION 50

TABLE OF AUTHORITIES

FEDERAL CASES

Alabama Nursing Home Ass'n v. Harris, 617 F. 2d 511 (5th Cir. 1980) 21

Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191 (1965) 33

Atkins v. Parker, 472 U.S. 115, 105 S.Ct. 2520, 2528 (1985) 27

Barnett v. Lindsay, 319 F.Supp. 610, 612 (D.C. Utah 1970) 26, 33

Becker v. Toia, 439 F.Supp. 324, 336 (S.D.N.Y. 1977) 42

Bennett v. Butz, 386 F. Supp. 1059 (D. Minn. 1974) 41

Board of Regents of State Colleges v. Roth, 408 U.S. 564,

92 S.Ct. 2701, 33 L.Ed. 548 (1972) 25, 26

Boddie v. Wyman, 323 F. Supp 1189 (S.D.N.Y. 1970),

aff'd, 434 F.2d 1207 (2d Cir. 1970), aff'd, 402 U.S. 991 (1971) 41, 42

Brown v. Giuliani, 158 F.R.D. 251 (E.D.N.Y. 1994) 42, 45, 49

Burns v. Alcada, 420 U.S. 575 (1975) 19

Caldwell v. Blum, 621 F.2d 491 (2d Cir. 1980) 42

Camacho v. Blum, 786 F.2d 32, 36 (2d Cir. 1986) 42

Carey v. Quern, 588 F. 2d 230 (7th Cir. 1978) 29, 30

Daniels v. Woodbury County, Iowa, 625 F. Supp. 855, 856 (N.D.Iowa 1986) 33

Daniels v. Woodbury County, Iowa, 742 F.2d 1128, 1132-33 (8th Cir. 1984) 26

Dean v. Coughlin, 107 F.R.D. 331, 334 (S.D.N.Y. 1985) 49

Disabled American Veterans v. U.S. Dept. of Veterans Affairs, 783 F. Supp. 187,

196 (S.D.N.Y. 1992), reversed on other grounds, 962 F.2d 136 (2d Cir. 1992) 40

Dura-Bilt Corp. v. Chase Manhattan Corp., 89 F.R.D. 87, 99 (S.D.N.Y. 1981) 49

Elrod v. Burns, 427 U.S. 347 40

Escalera v. New York City Housing Authority, 425 F.2d 853, 867 (2d Cir. 1969),

cert. denied, 400 U.S. 853 (1970) 48

Folsum v. Blum, 87 F.R.D. 443 (S.D.N.Y. 1980) 47

Giacone v. Schweiker, 656 F. 2d 1238, 1244 (7th Cir. 1981) 30

Goldberg v. Kelly, 397 U.S. 254 (1970) 25, 28, 33, 41

Goldstein v. North Jersey Trust Company, 39 F.R.D. 363, 367 (S.D.N.Y. 1966) 47

Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783 (1914) 33

Gregory v. Town of Pittsfield, 470 U.S. 1018, 1021(1985)(O 26

Griffeth v. Detrich, 603 F.2d 118, 120-21 (9th Cir. 1979) 26

Haskins v. Stanton, 794 F.2d 1273, 1277 (7th Cir. 1986) 44

Hurley v. Toia, 432 F. Supp. 1170 (S.D.N.Y. 1977), aff'd, 573 F.2d 1291 (2d Cir. 1978) 41, 43

ICN Pharmaceuticals, Inc, v. Khan, 2 F.3d 484, 490 (2d Cir. 1993) 16

Illinois Hosp. Ass'n v. Illinois Dept., of Public Aid, 576 F. Supp. 360 (D. Ill. 1983) 21, 44

Isaacs v. Bowen, 865 F.2d 468, 476 (2d Cir. 1989) 28

Johnston v. Shaw, 556 F.Supp. 406, 412-13 (N.D.Tex. 1982) 26

LaChance v. Erickson, __ U.S. __, 118 S.Ct. 753, 756 (1998) 33

Lewis v. Grinker, 965 F.2d 1206 (2d Cir. 1992) 42

Lyons v. Weinberger, 376 F. Supp. 248 41

Mallette v. County Employees' Retirement System II, 91 F.3d 630, 636 (4th Cir. 1996) 26

Massachusetts Ass'n of Older Americans v. Sharp, 700 F.2d 749 (1st Cir. 1983) 21

McCoy v. Ithaca Housing Authority, 559 F. Supp. 1351, 1355 (N.D.N.Y. 1983) 47, 48

Mennonite Board of Missions v. Adams, ___ U.S. ___, 103 S. Ct. 2707, 2712 (1983) 30

Metcalf v. Trainor, 472 F. Supp. 576, 596 (N.D. Ill. 1980 30

Mitchell v. Cuomo, 748 F.2d 804 (2d Cir. 1984) 30

Morel v. Giuliani, ____ F. Supp ___ (S.D.N.Y. 1995) 40

Moreno v. United States Dept. of Agriculture, 345 F. Supp 310 (D.D.C. 1972) 42, 45

New York Pathological & X-Ray Laboratories, Inc. v. Immigration and

Naturalization Service, 523 F.2d 79, 81 (2d Cir. 1975) 41

New York State Ass'n for Retarded Children v. Rockefeller,

357 F. Supp. 752 (E.D.N.Y. 1973) 41

Northwestern National Bank of Minneapolis v. Fox & Company,

102 F.R.D. 507, 511 (S.D.N.Y. 1984) 47

Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 937 (2d Cir. 1968) 46

Peer v. Griffeth, 445 U.S. 970, 100 S.Ct. 1348, 64 L.Ed.2d 247 (1980) 27

Plaza Health Laboratories, Inc. v. Paralyzed Veterans, 878 F.2d 577, 580 (2d Cir. 1989) 26

Port Authority Police Benevolent Assoc. v. Port Authority of NY and NJ,

698 F.2d 150, 153 (2d Cir. 1983) 16

Robidoux v. Celani, 987 F.2d 931 (2d Cir. 1993) 48

Rocky Ford Housing Authority v. United States Department of Agriculture,

427 F. Supp. 118, 126-127 (D.D.C. 1977) 47

Rosado v. Wyman, 397 U.S. 397 (1970) 50

Rothstein v. Wyman, 467 F.2d 226, 232, (2d Cir. 1972), cert. denied,

411 U.S. 921 (1973), rehearing denied, 411 U.S. 988 (1973) 19

Smith v. Miller, 665 F.2d 172 (7th Cir. 1981) 19

Viverito v. Smith, 474 F. Supp. 1122 (S.D.N.Y. 1979) 45

White v. Roughton, 530 F.2d 750, 755 (7th Cir. 1976) 19

Willis v. Lascaris, 499 F. Supp. 749, 759 (N.D.N.Y. 1980) 26

STATE CASES

Cruz v. Lavine, 45 A.D.2d 720 (2d Dep't 1974) 33, 34, 37

Davis v. Perales, 137 Misc. 2d 649 (Sup. Ct. Kings Co. 1987) 24

Gilbert v. Tull, 145 N.Y. Sup. 53, 366 A.2d 1012, 1016 (Sup. Ct. 1976) 31

Gonzalez v. Blum, 127 Misc. 2d 558, 558 (Sup. Ct. West. Co. 1985) 30

Gutowski v. Lavine, 44 A.D. 2d 649 (2d Dept. 1974) 24

FEDERAL STATUTES

42 U.S.C. § 1396b 5

42 U.S.C. § 1983 1

42 U.S.C. §§ 1396 and 1396a 5

7 U.S.C. § 2011 3

7 U.S.C. § 2020 3, 4, 20, 21

7 U.S.C. §2011 3

XIX of the Social Security Act, 42 U.S.C. § 1396 5, 21

STATE STATUTES

N.Y. Soc. Serv. Law § 133 9

N.Y. Soc.Serv. Law §§ 131 6

New York Social Services Law §§ 157 & 158 27

FEDERAL REGULATIONS

42 C.F.R. § 435.905 5

42 C.F.R. § 435.906 5, 21

42 C.F.R. § 435.909 6, 22

42 C.F.R. § 435.911 6

42 C.F.R. § 435.913 6, 22

42 C.F.R. § 435.930 6, 22

42 C.F.R. §§ 435.911 6, 22

7 C.F.R. § 273.2 3, 4, 20, 21

7 C.F.R. §§ 273.2 4, 5, 20

STATE REGULATIONS

18 N.Y.C.R.R. § 350.3(a) 7, 8, 23

18 N.Y.C.R.R. § 350.3(b) 8, 23

18 N.Y.C.R.R. § 350.3(c) 8, 24

18 N.Y.C.R.R. § 350.6 8, 23

18 N.Y.C.R.R. § 351.1(b)(1)(i) 23

18 N.Y.C.R.R. § 351.8(b) 7-9, 24

18 N.Y.C.R.R. § 351.8(c)(4) 8, 9

18 N.Y.C.R.R. § 352.1 8

18 N.Y.C.R.R. § 354.1(b) 8

18 N.Y.C.R.R. § 355.1 7

18 N.Y.C.R.R. § 355.3(a)(3) 9

18 N.Y.C.R.R. §§ 350.3(b), 351.1(c)(1) 8, 23

18 N.Y.C.R.R. §§ 351.1(b)(1)(i), 355.1 7

18 N.Y.C.R.R. §§ 355.1 7

18 N.Y.C.R.R. §§ 355.1(a)(1) 23

PRELIMINARY STATEMENT

Plaintiffs bring this action under 42 U.S.C. § 1983, on behalf of themselves and a class of needy New York City families and individuals challenging defendants' customs, policies, and practices of deterring, discouraging, and preventing plaintiffs and plaintiff class members from filing applications for and receiving desperately-needed food stamps, Medicaid and cash assistance benefits. City defendants have implemented these customs, policies and practices by converting Income Support Centers, which sought to provide subsistence benefits to needy individuals and families, to Job Centers, which seek to divert, deter and prevent needy families and individuals from applying for and receiving benefits which they need to survive and keep their families intact.

The Job Centers seek to accomplish their goal of blocking access to benefits by providing false and misleading information about the availability of both ongoing and expedited assistance, by refusing to allow people to file applications, by pressuring people to withdraw their applications, by denying food stamps and Medicaid benefits for reasons that apply only to cash assistance eligibility, and by failing to provide written notice, including notice of hearing rights, to people who are denied benefits.

Plaintiffs seek a permanent injunctions enjoining defendants to (a) refrain from providing plaintiffs and members of the plaintiff class with false and misleading information about the availability of food stamps, Medicaid and cash assistance; (b) allow plaintiffs and plaintiff class members to file applications for food stamps, Medicaid, and cash assistance benefits on the first day they visit the Job Center; (c) refrain from discouraging and deterring plaintiffs and plaintiff class members from filing applications for food stamps, Medicaid and cash assistance including applications for expedited food stamps and temporary pre-investigation grants; (d) refrain from from pressuring people to withdraw their applications for food stamps, Medicaid and cash assistance, including applications for expedited food stamps and temporary pre-investigation grants; (e) process all applications for food stamps, Medicaid, and cash assistance, including expedited food stamps and temporary pre-investigation grants, within the time frames required by law; (f) make eligibility determinations regarding plaintiffs' food stamps and Medicaid applications separate from the eligibility determinations regarding their cash assistance applications; and (g) send plaintiffs and plaintiff class members timely and adequate written notices of determinations of their eligibility for any and all benefits for which they apply.

Plaintiffs by this motion seek a class-wide preliminary injunction: (1) requiring defendants to provide the individual named plaintiffs food stamps, Medicaid benefits, and/or cash assistance pending the final resolution of this action; (2) enjoining defendants from deterring, discouraging, and preventing plaintiffs and plaintiff class members from applying for food stamps, Medicaid, and cash assistance; and (3) staying City defendants from converting any further Income Support Centers to Job Centers until such time as defendants demonstrate that the Job Centers are operating in compliance with the due process clause of the United States Constitution and all applicable federal and state laws regarding the processing of applications for food stamps, Medicaid, and cash assistance.

STATUTORY AND REGULATORY SCHEME

Plaintiffs bring this action to protect rights secured under three different governmental benefits programs designed to alleviate the most brutal effects of poverty. Congress enacted the Food Stamp and Medicaid Programs to encourage the very poor to apply for basic nutritional and medical assistance. New York State enacted the Family Assistance and Safety Net Assistance programs to meet the subsistence needs of poor families and individuals. The Family Assistance Program is New York State's implementation of the federal Temporary Assistance to Needy Families block grant, which is intended, inter alia, to provide cash and/or other assistance to needy families.

Federal Food Stamp Program and New York State's participation

New York State participates in the federal Food Stamp Program created by the federal Food Stamp Act, funded by the federal government and administered by the states. 7 U.S.C. § 2011. The Food Stamp Program safeguards the health and well-being of the nation by raising the levels of nutrition among low-income households and thus strengthens the nation's economy by increasing the utilization of food products. Food stamps are targeted to the low-income population because Congress found that the limited purchasing power of these households contributes to hunger and malnutrition among members of these households. 7 U.S.C. §2011.

Under the federal Food Stamp Act, households must be permitted to file an application on the first day that they contact the local social services office. 7 U.S.C. § 2020 (e)(2)(B)(ii), 7 C.F.R. § 273.2 (c)(1). The state agency administering the Food Stamp Program, and delegate agencies, if any, are required to "encourage" households to file applications the same day they contact the office. 7 C.F.R. § 273.2 (c)(2). The administering agency must make information regarding the Food Stamp Program's requirements and procedures generally available and must explain to applicants for food stamps their rights and responsibilities concerning eligibility for benefits. 7 C.F.R. §§ 273.2 (c)(4), (e)(1), 272.5.

The application filed on day one by an individual or household seeking to apply for food stamps need only include the applicant's name, address, and signature. 7 C.F.R. § 273.2(c)(1). The state agency and its local delegate agencies, if any, must act promptly on all applications for food stamps and give applicants an opportunity to participate in the Food Stamp Program. 7 U.S.C. § 2020 (e)(3), 7 C.F.R. § 273.2 (a) & (g)(1). The State agency and its local delegate agencies, if any, must provide food stamps to eligible applicants no later than 30 days after application. 7 U.S.C. § 2020 (e)(3); 7 C.F.R. § 273.2 (g)(i).

All applicants for food stamps must be screened to see if they qualify for expedited issuance of food stamps. 7 C.F.R. § 273.2 (i)(2). Expedited issuance of food stamps is generally available to households with very low income and liquid resources, households whose housing costs exceed the sum of their income and liquid resources, and certain migrant and seasonal worker households. 7 U.S.C. § 2020 (e)(9), 7 C.F.R. § 273.2 (i)(1). About one-third of approved food stamp applicants qualify for expedited service. Food and Consumer Service, U.S.D.A., Evaluation of Expedited Service in the Food Stamp Program, 1995.

If an individual or household seeks to apply jointly for cash assistance and food stamps, any delays in the processing of the application for cash assistance shall not result in any delay in the processing of the food stamps application. 7 C.F.R. § 273.2 (j)(1)(iii). If the cash assistance application is denied or withdrawn, the applicant cannot be required to submit a new application for food stamps and the application must continue to be processed. 7 C.F.R. § 273.2 (g).

A food stamps application must be documented in the case file. If the application for food stamps is withdrawn, documentation must demonstrate that contact was made with the household to confirm the withdrawal and advise the household to confirm and advise the household of the right to reapply at any time. 7 C.F.R. § 273.2(c)(6).

Federal Medicaid Program and New York State's Participation

New York State participates in the federal Medicaid program, title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., under which the federal government provides matching funds to states to provide medical benefits for their poor residents who meet certain financial eligibility requirements. 42 U.S.C. § 1396b; N.Y. Soc. Serv. L. § 366. In return for a federal contribution of 50% of the cost of Medicaid benefits, New York State must comply with federal Medicaid statutes and regulations. 42 U.S.C. §§ 1396 and 1396a. The Medicaid program enables families and individuals, whose income and resources are otherwise insufficient to do so, to acquire necessary medical, rehabilitative, and other services. The program is intended to help these families and individuals access needed medical services and thereby attain or retain capability for independence or self-care. 42 U.S.C. § 1396.

The federal Medicaid statute requires that an individual or household be given the right to apply for Medicaid without delay. 42 U.S.C. § 1396 (a)(8); 42 C.F.R. § 435.906. The administering agency must provide all applicants, and all other individuals who request it, information regarding Medicaid eligibility criteria, available Medicaid services, rights and responsibilities of applicants and recipients, and rules governing appeals. 42 C.F.R. § 435.905 (a)(1)-(3).

Medicaid applications must be acted on promptly and without delay. The application must be processed and eligibility determined within 45 days, 42 C.F.R. §§ 435.911 (a)(2), except in circumstances where the applicant claims a disability, in which case it must be processed in 90 days. 42 C.F.R. § 435.911 (a)(1).

The state agency and its delegate agency, if any, must provide assistance for applicants to secure emergency medical care as needed. 42 C.F.R. § 435.930.

The state agency cannot deny Medicaid solely because the cash assistance application has been denied or withdrawn, nor may the cash assistance applicant be required to submit a new Medicaid application following denial or withdrawal of a cash assistance application. The United States Department of Health and Human Services has issued a policy implementing this regulation: "States are specifically prohibited from denying or terminating Medicaid eligibility unless all possible avenues to Medicaid eligibility have been explored and exhausted." HHS Letter to State Medicaid Directors and TANF Administrators. (June 5, 1998).

In the event that an application for Medicaid is voluntarily withdrawn, the administering agency must send a notice to the applicant confirming the withdrawal of the Medicaid application. 42 C.F.R. § 435.913.

New York State's Family Assistance and Safety Net Assistance Programs

The New York State Constitution, Article 17, §1, provides that the State of New York and its political subdivision must meet the needs of its poorest residents. It is the duty of state and local social services officials to provide adequately for those individuals and families who do not have sufficient funds to support themselves and to provide such services as far as possible to ensure that families be kept together and not be separated for reasons of poverty alone. N.Y. Soc.Serv. Law §§ 131 (1)&(3). This obligation is met in part through the establishment of two programs: the Family Assistance Program, which provides cash assistance to families with children under 18 years of age, and the Safety Net Assistance program, which provides cash assistance to the poor persons whose needs are not otherwise met by any other assistance program. New York State Social Services Law §§ 157 et seq. & 343 et seq.

Under the New York State Social Services Law, any person has a right to make an application for that form of public assistance or care that he or she believes will meet her needs. 18 N.Y.C.R.R. § 350.3(a). Individuals must be given clear and detailed information regarding public assistance programs, eligibility requirements, and available benefits upon inquiry or application for public assistance or care. 18 N.Y.C.R.R. §§ 351.1(b)(1)(i), 355.1.

The social services district must give each person who inquires about or applies for public assistance information concerning: (a) the eligibility requirements for public assistance or care; (b) the method of computing a public assistance grant or determining eligibility for care; and (c) the right to complain to the State department when dissatisfied with the local decision. 18 N.Y.C.R.R. §§ 355.1 (a) (1), (3) and (4).

The social services district must also give each person who inquires about or applies for public assistance or care information concerning the right to appeal to the State Office of Temporary and Disability Assistance and request a fair hearing. 18 N.Y.C.R.R. § 355.1 (a)(4).

Applicants for cash assistance must be notified about the availability of assistance to meet emergency circumstances or prevent eviction. 18 N.Y.C.R.R. § 351.8(b). Individuals determined by the social services district to be in immediate need of assistance have a right to an emergency or predetermination grant of assistance, even when ongoing eligibility has not yet been established. Social Services Law § 133; 18 N.Y.C.R.R. § 351.8(c)(4).

The local social services district must record every request for assistance or care. 18 N.Y.C.R.R. § 350.6. An individual, any adult member of his or her family, or any person acting on his or her behalf, including a relative, friend, other agency or institution, shall have the right to make an application for public assistance. 18 N.Y.C.R.R. § 350.3(a). An individual must be permitted to file an application for public assistance without first providing the documentation that is required for the subsequent eligibility determination. 18 N.Y.C.R.R. § 350.3(b). To be eligible for public assistance, a household must be determined by the local social services district to meet the statewide standard of monthly need. 18 N.Y.C.R.R. § 352.1.

The personal interview to establish eligibility for public assistance must be scheduled within seven working days from the date of filing, except when there is an indication of emergency need, in which case the interview must be held immediately. 18 N.Y.C.R.R. § 350.3(c).

Public assistance applications must be acted on promptly and without delay. 18 N.Y.C.R.R. §§ 350.3(b), 351.1(c)(1). The decision to accept or deny the application for public assistance must be made within 30 days from the date of application for Family Assistance and within 45 days from the date of application for Safety Net Assistance, except for specified acceptable reasons for delay. 18 N.Y.C.R.R. § 351.8(b).

The local social services district must notify every applicant in writing of its decision to accept or deny an application for public assistance. 18 N.Y.C.R.R. § 351.8(b). The local social services district must maintain a case record for each application and for each case of public assistance. 18 N.Y.C.R.R. § 354.1(b). When an application for public assistance is withdrawn, the social services district must record the reasons for doing so in the case record. 18 N.Y.C.R.R. § 355.3(a)(3).

Emergency and Expedited Assistance

When a person seeking food stamps, Medicaid, or cash assistance from City defendants appears to be in immediate need, temporary assistance or care must be granted pending completion of an investigation of eligibility. N.Y. Soc. Serv. Law § 133. An applicant for public assistance must be notified about the availability of assistance to meet emergency circumstances or to prevent eviction. 18 N.Y.C.R.R. § 351.8(b) Individuals determined by the social services district to be in immediate need of assistance have a right to an emergency or predetermination grant of assistance, even when ongoing eligibility has not yet been established. 18 N.Y.C.R.R. § 351.8(c)(4).

STATEMENT OF FACTS

Plaintiffs challenge defendants' practice and policy of deterring eligible persons from applying and receiving food stamps, Medicaid, and cash assistance. City defendants pursue these practices as part of a scheme to eliminate welfare in New York City by the year 2000, despite the fact that federal and state laws have not eliminated welfare programs to help the needy.

As more fully described in the declaration of Helen Lee, dated December 15, 1998 ("Lee Dec."), City defendants seek to accomplish their goal by misinforming prospective applicants about the availability of food stamps, Medicaid, and cash assistance, pressuring people to withdraw their applications, denying food stamps and Medicaid benefits for reasons that apply only to cash assistance eligibility, and failing to provide written notice, including notice of hearing rights, to people who are denied benefits.

In furtherance of their goal, City defendants are in the process of converting all thirty-one Income Support Centers⁽¹⁾ into "Job Centers." According to the training materials for Job Center staff, the primary goal of the Job Centers is "PA diversion", including reducing the number of applications. Lee Dec. ¶ 15. City defendants began converting ISCs into Job Centers in April 1998. Since April, City defendants have converted eleven ISCs into Job Centers. By Spring of 1999, conversion of all ISCs to Job Centers is scheduled to be completed and all joint applicants and recipients of food stamps, Medicaid, and cash assistance in the city will be processed through Job Centers. Upon information and belief, five more ISCs will be converted into Job Centers within the next two weeks. Lee Dec. ¶ 16

City Defendants Unlawfully Misinform and Deter Needy Families and Individuals from Applying at Initial Contact with the Job Center.

Needy families and individuals who come to the Job Center seeking food stamps, Medicaid and cash assistance, including expedited food stamps and temporary pre-investigation cash assistance grants, are deterred from applying for assistance. City defendants tell people seeking assistance who arrive after 9:30 a.m., regardless of their emergency needs or circumstances, that they must return another weekday morning at 8:30 a.m. in order to request any assistance. Lee Dec. ¶ 17. All families and individuals are incorrectly told that there is no more welfare and that the Job Center is only about getting people jobs. Lee Dec. ¶ 18. In reality, very few people who seek assistance at the Job Centers get jobs through the Job Centers, but this misinformation leads needy families and individuals who would otherwise be eligible for food stamps, Medicaid and cash assistance into leaving the Job Center without applying for the assistance that they are legally entitled to.

City defendants, in violation of federal food stamps and Medicaid law, also tell people that if they miss any appointment their application will be denied and then they must start all over again. Moreover, City defendants' staff also tell people seeking assistance that expedited food stamps and emergency pre-investigation cash assistance grants no longer exist, or that applicants are not eligible for expedited food stamps or emergency pre-investigation cash assistance grants for reasons having nothing to do with the eligibility criteria set by federal and state law. Lee Dec. ¶ 20.

City defendants also misinform people about the existence and effect of time limits on assistance in New York. While telling people that cash assistance is limited to two years for childless adults and five years for families, City defendants fail to correctly inform people that there are no time limits for receipt of food stamps and Medicaid, and that the limits on cash assistance in New York only apply to whether the assistance is received as cash or as vouchers, not to whether aid is available. Lee Dec. ¶ 21. Rather, City defendants deliberately mislead people by implying that no assistance will be available at the end of the two or five year period.

City Defendants Use "Job Profile" Forms and Withhold Application Forms to Delay and Deter Applicants From Making Applications

Before needy families with children and individuals seeking assistance are given or allowed to file applications for food stamps, Medicaid and cash assistance, including expedited food stamps and temporary pre-investigation cash assistance grants, the Job Center staff require that they first complete and sign a five-page Participant Job Profile ("PJP") form. Job center staff often deter and delay families' and individuals' applications for food stamps, Medicaid and cash assistance by requiring them to first obtain and return documents from other agencies and outside sources as a condition of receiving the PJP form. Lee Dec. ¶ 22-23.

Moreover, Job Center staff use the PFP form to compel prospective applicants to withdraw their applications. Tellingly, on the last page of the PJP form there are two signature lines. Directly under the line for consenting to be investigated as a condition of eligibility for assistance is a signature line for the applicant to "consent to withdraw their" PJP form. Much of the Job Center process is devoted to getting applicants to sign the withdrawal line of the PJP form. Lee Dec. ¶ 24-25.

Job Center staff use delay and misinformation to discourage the completion of the application process. For example, people seeking assistance who request to complete an application form are told that they must wait until the end of their "employment process," which does not occur until at least the second day of the Job Center, in order to receive an application to complete. People seeking assistance who try to file an application form are told that the form will not be accepted until later in the Job Center process. Lee Dec. ¶ 26.

Once a person seeking assistance has been given the PJP form to complete, he or she is told to sit in the waiting room. At some Job Centers, a staff member comes out to the waiting room several times an hour and gives a speech, seeking to deter people from continuing the Job Center application process. In the speech, the worker again misinforms people, telling them that a) there is no more welfare at all, b) all applicants would have to report to the Job Center every day all day so that anyone working part-time should not apply or should quit their jobs because their work schedules will not be accommodated, c) people are required to work regardless of whether they are disabled, and d) no emergency or expedited assistance is available. Lee Dec. ¶ 30.

City Defendants Misinform and Deter During the Eligibility Process.

Applicants are also forced to complete additional eligibility appointments with personnel at the Job Center beyond those required under the comprehensive application process used by City defendants before the implementation of the Job Center initiative. These include meeting with the "Financial Planner," the "Employment Planner," and with personnel at a private job search site, as part of their application process. Lee Dec. ¶ 27. Both the "Financial Planner" and the "Employment Planner" work to convince applicants to abandon the application process.

The Financial Planner

City defendants require applicants to meet with a "Financial Planner," who reviews the PJP form with the person seeking assistance and attempts to dissuade him or her from actually applying for food stamps, Medicaid, and cash assistance by suggesting that he or she instead seek non-governmental forms of aid or charity including "family support network[s] outside of New York City" and financial assistance from "Church, Foundations and Community-based Organizations." Lee Dec. ¶ 29-30.

Applicants who have no food or inadequate food at home are referred to a local emergency food provider, such as a soup kitchen or a food pantry, instead of being assessed or given expedited food stamps as required by law. This is an inadequate alternative since there is no guarantee that food will be available to people who succeed in getting to a food pantry as the increasing need for emergency food in New York City strains the existing food supply. In January 1998, alone, over 58,000 hungry people were turned away from emergency food programs in New York City due to inadequate food supplies. New York City Coalition Against Hunger, Rationing Charity: The 1998 Survey of the New York City Emergency Food Programs, released October 15, 1998. Lee Dec. ¶ 32.

City defendants' Financial Planners tell families and individuals with an emergency need, such as lack of necessary medication, that they must wait until their application is approved before any action can be taken regarding the emergency. Lee Dec. ¶ 31. Similarly, Financial Planners fail to assess the emergency situations faced by families and individuals with notices of utility shut-offs or eviction for non-payment of rent. Instead, the Financial Planner incorrectly tell them that such emergency assistance does not exist or that they must wait until their cases are opened to receive emergency assistance. Lee Dec. ¶ 32.

City defendants' Financial Planners also repeat the misleading information concerning time limits for cash assistance that the receptionist has told people and do not explain that time limits do not apply to food stamps and Medicaid benefits. Lee Dec. ¶ 33. Indeed, Financial planners frequently, for reasons having nothing to do with eligibility for benefits, tell eligible people seeking assistance to sign the "withdrawal" line of the PJP form. Lee Dec. ¶ 34.

The Employment Planner

Employment Planners tell all persons seeking assistance that they must report to a job search assignment located at the Job Center or at an off-site location, sometimes in a different borough, during the 35 to 50 days pending the processing of their application for assistance, as a condition of their eligibility for assistance. Employment Planners do not inform people that job search requirements do not apply to Medicaid eligibility and, in most cases, to food stamp eligibility. Applicants are told that every appointment is mandatory and failure to keep an appointment will cause their applications to be denied, even if an applicant has a good reason for missing the appointment. Lee Dec. ¶¶ 38-41.

Usually after the completion of the meeting with the Employment Planner, the applicant is either handed a blank application form or told to return the next day to get a blank application form. Applicants are told that they may not hand in the application until later on in the process, usually at the first comprehensive interview, known as the "I" appointment. Applicants are told that failure to go to every day of job search or orientation will cause their applications to be denied, including food stamps and Medicaid in violation of federal law. Lee Dec. ¶¶ 42-43.

ARGUMENT

I. THE DEFENDANTS SHOULD BE PRELIMINARILY ENJOINED FROM VIOLATING FEDERAL AND STATE LAWS GOVERNING THE RIGHT OF PLAINTIFFS AND PLAINTIFF CLASS MEMBERS TO APPLY FOR BENEFITS.

Plaintiffs satisfy the standard for granting a preliminary injunction since they demonstrate "irreparable harm and either (1) likelihood of success on the merits; or (2) sufficiently serious questions going to the merits . . . to make them a fair ground for litigation, plus a balance of the hardships tipping decidedly in favor of the moving party." ICN Pharmaceuticals, Inc, v. Khan, 2 F.3d 484, 490 (2d Cir. 1993); Plaza Health Laboratories, Inc. v. Paralyzed Veterans, 878 F.2d 577, 580 (2d Cir. 1989).

A. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS

Defendants' conduct violates federal and state law as well as the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Hence, this court should stay further violations.

1. Defendants Unlawfully Deter Plaintiff Class Members From Applying for Food Stamps, Medicaid, and Cash Benefits and Failing to Process Applications in Conformity with Legal Mandates.

Defendants engage in a policy and practice of unlawfully deterring needy applicants from applying for subsistence benefits. Defendants violate plaintiffs' rights to file applications and to have those applications processed in several ways. First, defendants discourage and deter plaintiffs and plaintiff class members from filing applications both by incorrectly and misleadingly telling them that the assistance they seek no longer exists and by frequently refusing to provide them an application for that assistance.

Second, when plaintiff class members persevere in their pursuit of desperately needed assistance and secure an application, City defendants routinely mislead applicants into withdrawing their applications or summarily deny applications without further processing.

Third, defendants routinely fail and refuse to continue to process applications for food stamps and Medicaid when they force applicants to withdraw their applications for cash assistance or summarily deny those applications.

The lawlessness of defendants' conduct is demonstrated by the experiences of plaintiffs, plaintiff class members, and the declarants. The illegal behavior begins at initial contact. Applicants who arrive after 9:30 a.m., regardless of their emergency needs or circumstances, are told that they must return another weekday morning at 8:30 a.m. in order to request any assistance. Declaration of Elston Richards, dated December 10, 1998 ("Richards Dec.") ¶ 10; Declaration of Tracy Morgan, dated December 4, 1998 ("Morgan Dec.") ¶ 9; Declaration of Romanita Perez, dated December 4, 1998 ("Perez Dec.") ¶ 5.

Plaintiffs and plaintiff class members are repeatedly told that there is no more welfare in an obvious attempt to discourage them from applying. Declaration of Michelle Stevens, dated December 9, 1998 ("Stevens Dec.") ¶ 9. This misinformation is effective; it leads needy families and individuals who would otherwise be eligible for food stamps, Medicaid and cash assistance into leaving the Job Center without applying for the assistance to which they are legally entitled. For example, Romanita Perez, who already had a job, went to the Job Center to apply for food stamps, Medicaid and supplemental cash assistance. She was misinformed and told that welfare no longer existed and the only thing the Job Center staff could do was help people find jobs. Since she already had a job, she left the Job Center. Perez Dec. ¶¶ 5-6. Michelle Stevens was also misinformed that she had to come to the Job Center every day and look for a job as a condition of processing her application for an emergency rent arrears grant, even though Ms. Stevens already had a job. Ms. Stevens was disturbed by this misinformation and would have been deterred by this misinformation but for the fact that she had a Legal Aid Society attorney with her at the Job Center. Stevens Dec. ¶¶ 12,15.

City defendants further lie to plaintiffs and members of the plaintiff class to discourage their applications by telling them that expedited food stamps and emergency pre-investigation cash assistance grants no longer exist, Declaration of Lakisha Reynolds, dated December 11, 1998 ("Reynolds Dec.") ¶ 9, Stevens Dec. ¶¶ 7-8, Morgan Dec. ¶ 22, or that applicants are not eligible for expedited food stamps or emergency pre-investigation cash assistance grants for reasons having nothing to do with the eligibility criteria set by federal and state law. Calabrese Dec. ¶¶ 3,12; Perez Dec. ¶ 8; Declaration of Maria Coram, dated December 4, 1998, ("Coram Dec.") ¶ 3. Moreover, prospective applicants are discouraged by City defendants' staff who tells them, in violation of federal food stamps and Medicaid law, that if they miss any appointment then their application will be denied and that they must start all over again. Richards Dec. ¶¶ 3,12; Stevens Dec. ¶ 10; Morgan Dec. ¶ 15.

As explained above, City defendants often deter and delay family's and individual's applications for food stamps, Medicaid and cash assistance from receiving and being allowed to complete an application for benefits. Mejirdel Dec. ¶¶ 22, 34-36; Ms. Bonilla had obtained an application through a friend and, with the help of her neighbor, Ms. Reyes, had fully completed it immediately prior to going into the Job Center. Despite her having a fully completed application for food stamps, Medicaid and cash assistance, including a request for badly-needed expedited food stamps, Ms. Bonilla was not even allowed to file her application until seven days after she first went into the Hamilton Job Center and requested food stamps, Medicaid and cash assistance. Declaration of Georgina Bonilla, dated December 8, 1998 ("Bonilla Dec.") ¶¶ 8, 13. Moreover, much of the Job Center process is devoted to getting applicants to sign the withdrawal line of the PJP form. Morgan Dec. ¶ 7.

Finally, City defendants do not ask whether applicants need expedited food stamps, emergency Medicaid, or other emergency assistance. Yet, as the declarations of plaintiffs and plaintiff class members document, virtually every applicant is in desperate shape when he or she seeks assistance from City defendants. See § I.B infra.

a. Defendants Deter Plaintiff Class Members from Applying for Food Stamps in Violation of Federal Statute and Regulation

The duty to comply with the mandates of the Food Stamp Program is unequivocal. New York State "is not legally obligated to participate in [federally funded public assistance programs]; if it does, it must comply with federal requirements. . . ."Rothstein v. Wyman, 467 F.2d 226, 232, (2d Cir. 1972), cert. denied, 411 U.S. 921 (1973), rehearing denied, 411 U.S. 988 (1973). See also, Burns v. Alcada, 420 U.S. 575 (1975), and Rosado v. Wyman, 397 U.S. 397 (1970); Viverito v. Smith, 474 F. Supp. 1122 (S.D.N.Y. 1979).

Defendants conduct is in complete opposition to the clear mandates of the federal Food Stamp law. The law could not be more specific. Defendants must encourage persons to apply for food stamps and must make the application process one that enables households to successfully complete the application process as easily and expeditiously as possible. 7 U.S.C. §2020 (e)(2) and (3).

Indeed, defendants are required to "encourage" households to file applications the same day they contact the City defendants' offices. 7 C.F.R. § 273.2 (c)(2). Defendants must insure that information regarding the Food Stamp Program's requirements and procedures is made available to applicants and that the City defendants explain to applicants for food stamps their rights and responsibilities concerning eligibility for benefits. 7 C.F.R. §§ 273.2 (c)(4), (e)(1), 272.5. Yet, defendants do not encourage the filing of applications; instead, as set forth above, they actively discourage needy persons from obtaining and filing applications for benefits, including food stamps.

Defendants must permit applicants to file an application on the first day that they contact the City defendants' office. 7 U.S.C. § 2020 (e)(2)(B)(iii), 7 C.F.R. § 273.2 (c)(2). Yet, defendants do not permit the filing of applications on the day of the first visit. Instead, they often turn people away on the first visit or make potential applicants wait up to a week to submit an application.

Defendants must act promptly on all applications for food stamps and give applicants an opportunity to participate in the Food Stamp Program, 7 U.S.C. § 2020 (e)(3), 7 C.F.R. § 273.2 (a) & (g)(1), and must provide food stamps to eligible applicants no later than 30 days after application. 7 U.S.C. § 2020 (e)(3); 7 C.F.R. § 273.2 (g)(i). Moreover, any delays in the processing of the application for cash assistance shall not result in any delay in the processing of the food stamp application. 7 C.F.R. § 273.2 (j)(1)(iii). If the cash assistance application is denied or withdrawn, the applicant cannot be required to submit a new application for food stamps. 7 C.F.R. § 273.2 (g). A food stamps application must be documented in the case file and the documentation must demonstrate that contact was made with the household to confirm the withdrawal and advise the household to confirm and advise the household of the right to reapply at any time. 7 C.F.R. § 273.2 (c)(6). Yet, as the declarations submitted with this motion document, defendants routinely violate this requirement by failing to continue to process the food stamps applications for persons for whom they have determined to deny cash assistance. Not only do defendants fail to act on food stamp applications expeditiously, they often require applicants to withdraw the application with no investigation of eligibility.

Defendants are required to screen all applicants to see if they qualify for expedited issuance of food stamps. 7 C.F.R. § 273.2 (i)(2). Expedited issuance of food stamps is generally available to households with very low income and liquid resources, households whose housing costs exceed the sum of their income and liquid resources, and certain migrant and seasonal worker households. 7 U.S.C. § 2020 (e)(9), 7 C.F.R. § 273.2 (i)(1). Defendants do not screen for expedited food stamps. Instead, they aggressively mislead applicants into believing the expedited food stamps are no longer available.

b. Defendants Deter Plaintiff Class Members from Applying for Medicaid Benefits in Violation of Federal Statute and Regulation

As with food stamps, defendants are not required to participate in the Medicaid program, but once they choose to do so, they must comply with all requirements imposed by both the statute and regulation. Massachusetts Ass'n of Older Americans v. Sharp, 700 F.2d 749, 750 (1^st Cir. 1983), Alabama Nursing Home Ass'n v. Harris, 617 F.2d 388, 396 (5^th Cir. 1980); Illinois Hosp. Ass'n v. Illinois Dep't of Public Aid, 576 F. Supp. 360, 371 (N.D. Ill. 1983). And just as with food stamps, the federal Medicaid statute mandates that states encourage individuals and households to apply for Medicaid and prohibits erecting barriers to the prompt filing and processing of Medicaid applications. An individual must be given the right to apply for Medicaid without delay. 42 U.S.C. § 1396 (a)(8); 42 C.F.R. § 435.906.

Defendants must act on applications promptly and without delay. Except in circumstances where the applicant claims a disability, the application must be processed and eligibility determined within 45 days, except in circumstances where the applicant applies for Medicaid based on a disability, in which case it must be processed in 90 days. 42 C.F.R. § 435.911 (a). Additionally, defendants must provide assistance for applicants to secure emergency medical care as needed. 42 C.F.R. § 435.930 (c). In New York State, Social Services Law § 133 imposes a duty on the City defendants to issue pre-investigation grants of cash assistance to meet immediate medical needs of Medicaid applicants until the public assistance application has been accepted. Pastore v. Sabol, 160 Misc. 2d 983, 992 (Sup. Ct., Queens Co. 1994)

In contrast, defendants, by City defendants' conduct, discourage and deter applicants from applying for Medicaid and fail to provide any information regarding entitlement to emergency assistance to any benefits, including medical treatment.

As is the case with food stamps, defendants cannot deny Medicaid solely because the cash assistance application has been denied or withdrawn, nor may they require the cash assistance applicant to submit a new Medicaid application. The United States Department of Health and Human Services has issued a policy directive which provides "States are specifically prohibited from denying or terminating Medicaid eligibility unless all possible avenues to Medicaid eligibility have been explored and exhausted." HHS Letter to State Medicaid Directors and TANF Administrators. (June 5, 1998). In the event that an application for Medicaid is withdrawn, the administering agency must send a notice confirming any voluntary withdrawal of a Medicaid application. 42 C.F.R. § 435.913 (b).

Yet, as with food stamps, defendants fail to permit people to apply or act on Medicaid applications in two ways. They do not accept Medicaid applications for processing when they refuse to accept applications for cash assistance. Moreover, when applicants are forced to withdraw their applications for cash assistance or those applications are denied, the City defendants do not continue to process applications for Medicaid.

c. Defendants Deter Plaintiff Class Members From Applying for Cash Assistance in Violation of State Law

New York State law sets forth in the statutory and regulatory scheme a clear obligation on City defendants to enable needy persons to apply for assistance and receive that assistance to which they are entitled under state law. Each person who inquires about or applies for public assistance (Including food stamps, Medicaid, and cash assistance) must be given information by City defendants concerning: (a) the eligibility requirements for public assistance or care; (b) the method of computing a public assistance grant or determining eligibility for care; and (c) the right to complain to State defendants when dissatisfied. 18 N.Y.C.R.R. §§ 355.1(a)(1), (3) and (4).

Furthermore, City defendants must provide applicants with clear and detailed information regarding public assistance programs, eligibility requirements, and benefits available under such programs. 18 N.Y.C.R.R. § 351.1(b)(1)(i). Any person has the right to make an application for that form of public assistance or care that he or she believes will meet his or her needs. 18 N.Y.C.R.R. § 350.3(a). Public assistance applications must be acted on by City defendants promptly and without delay. 18 N.Y.C.R.R. §§ 350.3(b), 351.1(c)(1).

City defendants must permit an individual to file an application for public assistance without first providing the documentation that is required for the subsequent eligibility determination. 18 N.Y.C.R.R. § 350.3(b). The social services district is responsible for recording every request for assistance or care. 18 N.Y.C.R.R. § 350.6. The personal interview to establish eligibility for public assistance must be scheduled within seven working days from the date of filing, except when there is an indication of emergency need, in which case the interview must be held immediately. 18 N.Y.C.R.R. § 350.3(c). The decision to accept or deny the application for public assistance must be made within 30 days from the date of application for Family Assistance and within 45 days from the date of application for Safety Net Assistance, except for specified, acceptable reasons for delay. 18 N.Y.C.R.R. § 351.8(b).

Finally, under state statute, City defendants must meet an applicant's immediate needs while they continue to process the application for assistance. Social Services Law § 133; Davis v. Perales, 137 Misc. 2d 649, 657-58 (Sup. Ct. Kings Co. 1987), aff'd, 151 A.D. 2d 749 (2d Dept. 1989); appeal denied, 75 N.Y. 2d 706 (1990); Gutowski v. Lavine, 44 A.D. 2d 649 (4^th Dept. 1974).

Yet, City defendants fail to follow this carefully crafted legal mandate designed to insure that needy persons have the opportunity to apply for that cash assistance and have the application acted upon. Instead, as detailed above, City defendants deter and discourage needy persons from applying for assistance in several ways at the Job Centers. First, City defendants routinely tell all applicants for assistance that there is no more "welfare" and that Job Centers do not provide cash assistance any longer. Second, the staff at the Job Centers frequently refuse to provide needy persons with applications. Third, at individual interviews with Job Center staff, applicants are often told that they are ineligible and are urged to withdraw from the application process. In each of these ways, City defendants avoid permitting needy individuals and families to make an application and have that application acted upon.

2. City Defendants' Operation of the Job Centers Violates the Due Process Clause of the United States Constitution.

Defendants have embraced an initiative of hindering and preventing needy individuals and families from applying for food stamps, Medicaid, and cash assistance benefits, with the necessary effect of depriving them of benefits to which they would otherwise be entitled. As explained above, defendants achieve this purpose by the willful provision of misleading information as well as by refusing to permit otherwise eligible persons to apply for assistance. Moreover, many of those seeking assistance who are summarily denied or compelled to withdraw their application by City defendants without ever being permitted to file a formal application are given no notice of denial and, therefore, no effective opportunity to be heard in challenge to the adverse action. Therefore, through their actions, defendants deprive plaintiffs of rights secured by the Due Process Clause of the Fourteenth Amendment of the United States Constitution.

a. Plaintiff Class Members Have a Property Interest in the Receipt of Food Stamps, Medicaid, and Cash Assistance.

In the landmark case of Goldberg v. Kelly, 397 U.S. 254 (1970), the Supreme Court held that persons seeking to vindicate their entitlement to public assistance possessed a property interest in those benefits and must be afforded procedural due process protections. The Court reasoned that public assistance is "a matter of statutory entitlement," which makes the interest in the receipt of such benefits a right rather than a privilege. 397 U.S. 262.

In Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972), the Court made it clear that persons who had not yet demonstrated their eligibility for public assistance retained a property interest:

Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Thus, the welfare recipients in Goldberg v. Kelly, supra, had a claim of entitlement to welfare payments that was grounded in the statute defining eligibility for them. The recipients had not yet shown that they were, in fact, within the statutory terms of eligibility. But we held that they had a right to a hearing at which they might attempt to do so.

Roth, 408 U.S. at 577, 92 S. Ct. at 2709 (emphasis added); see also Mallette v. Arlington County Employees' Supplemental Retirement System II, 91 F.3d 630, 637 (4th Cir. 1996)("The Supreme Court has explained that a person may hold a property interest in a benefit even before it has been determined that she is, in fact, eligible for the benefit."). In fact, "the weight of authority among lower courts" is in favor of recognizing such an interest. Gregory v. Town of Pittsfield, 470 U.S. 1018, 1021(1985)(O'Connor, J., dissenting).

Shortly after the Goldberg decision, a three-judge District Court in Barnett v. Lindsay, 319 F.Supp. 610, 612 (D.C. Utah 1970), explicitly extended Goldberg's procedural protections to applicants for welfare assistance and commented:

As such, summary denial of welfare assistance cannot be distinguished from summary termination. Just as the entitlement is created by statute for the benefit of needy persons meeting specified qualifications, so the rights surrounding that entitlement are created when the statutorily defined need arises and not after the benefits have been dispensed.

Id.; see also White v. Roughton, 530 F.2d 750, 755 (7th Cir. 1976); Griffeth v. Detrich, 603 F.2d 118, 120-21 (9th Cir. 1979), cert. denied, 445 U.S. 970, 100 S. Ct. 1348, 64 L.Ed.2d 247 (1980); Daniels v. Woodbury County, Iowa, 742 F.2d 1128, 1132-33 (8th Cir. 1984); Johnston v. Shaw, 556 F. Supp. 406, 412-13 (N.D.Tex. 1982). In each of these cases, federal courts found that where statutes and regulations mandate that those who meet the eligibility criteria for AFDC or general relief programs must be granted benefits, applicants possess a property interest in their claim for benefits, and must be afforded procedural due process.

The statutory entitlement to public assistance in New York State has not appreciably changed since Goldberg was decided. Those eligible for Family Assistance (FA) or Safety Net Assistance (SNA) in New York State have a clear constitutional and statutory entitlement flowing from the New York State Constitution, Article XVII, section 1 and New York Social Services Law §§ 157 & 158 (SNA), and §§ 343-350 (FA). ⁽²⁾

2. ⁰ In New York State, the statutory and regulatory entitlement to public assistance is derived from the New York State Constitution, Article 17, § 1, which provides that"[t]he aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine." Social Services Law § 131 proclaims, for all types of "assistance, care and services to be given" that:

1. It shall be the duty of the social services officials, insofar as funds are available for that purpose, to provide adequately for those unable to maintain for themselves, in accordance with the requirements of this article (Article 5 -- Assistance and care) and other provisions of this chapter. They shall, whenever possible, administer such care, treatment and service as may restore such persons to a condition of self-support or self-care, and shall further give such service to those liable to become destitute as may prevent the necessity of their becoming public charges.