Lumbard, Chief Judge, and Hays and Feinberg, Circuit Judges. Lumbard, Chief Judge (concurring). Feinberg, Circuit Judge (dissenting).
Defendants-appellants, the New York Commissioner of Social Services and the New York Department of Social Services appeal from an order and a judgment of the United States District Court for the Eastern District of New York granting a preliminary injunction, 304 F. Supp. 1354 (1969), and a permanent injunction, 304 F. Supp. 1354 (1969), against enforcement of Section 131-a of the New York Social Services Law, McKinney's Consol. Laws, c. 55.*fn1
An appeal by plaintiffs-appellees from a related decision of a three-judge court has been consolidated with the appeals referred to in the preceding paragraph.
Plaintiffs-appellees in this class action are welfare recipients residing in New York City and in Nassau County. They receive payments pursuant to the Aid to Families with Dependent Children program (AFDC) of the Social Security Act, 42 U.S.C. §§ 601-610 (1964, Supp. IV 1965-68). Under this program, in which all states participate, the federal government provides funds to the states on the condition that the plans for use of the funds meet various federal requirements. 42 U.S.C.§ 602(a) and (b) (1964, Supp. IV 1965-68). The states and their subdivisions also provide funds and each state administers its own program.
Appellees raised two principal claims in their complaint. The first was that Section 131-a violated Section 602(a) (23) of the Social Security Act*fn2 as amended in 1967 by reducing the amount of the AFDC benefits paid to them. The second claim, made by those appellees who are residents of Nassau County, was that Section 131-a violated the equal protection clause of the Fourteenth Amendment by providing for lower payments to AFDC recipients in Nassau County than to those in New York City, although the cost of living is substantially the same in both areas.
A three-judge district court was constituted under 28 U.S.C. § 2281 (1964) to hear the constitutional claim.
While the action was pending before the three-judge court, Section 131-a was amended to permit the Commissioner of Social Services to increase scheduled payments for areas outside New York City up to a maximum no higher than the levels for New York City, upon his determination that the total cost of the items included in the schedule for such an area exceeds the amount provided in the schedule.*fn3 The three-judge court ruled that this amendment mooted the equal protection claim of the Nassau County recipients, by making it possible for their payments to be increased to the level provided for New York City recipients if the cost of living in Nassau County made such an increase appropriate. It concluded that "any attack on the newly adopted subdivision would not be ripe for adjudication by this Court until there has been an opportunity for action by state officials and until the matter comes before this Court in an appropriate proceeding." The three-judge court also held that the mooting of the constitutional claim made "academic" the question of whether it might have decided the statutory claim in the exercise of its pendent jurisdiction. It then ordered itself dissolved and remanded the case to Judge Weinstein "for such further proceedings as are appropriate." 304 F. Supp. 1354, 1356 (1969). The same day Judge Weinstein issued an order temporarily restraining action under Section 131-a. Four days later he issued a preliminary injunction and denied appellants' motion to stay the injunction. On May 21 this court granted appellants' motion for a preference for their appeal from the order granting the preliminary injunction and denied appellants' motion for a stay without prejudice to renewal at the argument of the appeal. The appeal was argued on June 4. After hearing oral argument, on June 11, this court stayed the injunction pending the disposition of the appeal. On June 16 this court denied appellees' motion to vacate the stay and denied appellants' motion to stay proceedings in the district court until the decision on the appeal from the preliminary injunction. The next day appellees appealed to the United States Supreme Court from the order of dissolution of the three-judge court. The appeal was accompanied by a petition for certiorari before judgment to this court and a motion to expedite Supreme Court consideration of the case. On June 18, while the appeal was still pending in the Supreme Court, the district court granted summary judgment for appellees and issued a permanent injunction. The same day appellants filed a notice of appeal to this court from the issuance of the permanent injunction. On June 19 this court granted appellants' motion to stay the permanent injunction and it also granted appellants' motion to consolidate the appeal from the permanent injunction with the appeal from the temporary injunction. On June 24 the Supreme Court dismissed for want of jurisdiction the appeal from the dissolution of the three-judge court on the ground that the order was properly appealable to this court. The Supreme Court also refused to grant certiorari before judgment and denied appellees' motions to expedite review and to vacate the stays ordered by this court. 395 U.S. 826, 89 S. Ct. 2134, 23 L. Ed. 2d 739. Appellees thereupon appealed to this court from the order dissolving the three-judge court, and that appeal was consolidated with the appeals from the injunctions.
We turn first to the issue raised by the appeal from the order of the three-judge court.
Appellees urge that the three-judge court erred in dissolving itself and that we should order it to resume its deliberations.
The court ordered itself dissolved because of the adoption of an amendment to Section 131-a permitting increased payments to AFDC recipients in Nassau County upon a determination by the Commissioner of Social Services that the increases are required in order to reflect actual cost of living. The three-judge court was of the opinion that the issue raised by the Nassau County plaintiffs was mooted by the amendment to Section 131-a and that the issue presented by the amendment itself was not yet ripe for adjudication.
We are persuaded that the court acted correctly. We are confirmed in this view by the fact that, since the dissolution of the three-judge court, the schedule of payments for Nassau County has in fact been increased by reason of the provisions of the amendment to Section 131-a. If corroboration of the opinion of the three-judge court be needed it is provided by this development. Obviously a determination by the court based upon the situation as it existed at the earlier date would have been premature and its decision would have been rendered moot by the provision of the new schedules for Nassau County. The court was right in refusing to act on facts that were fluid and subject to early change. We affirm its order dissolving itself.
Appellants contend that the single district judge erred in exercising jurisdiction to issue a preliminary and a permanent injunction on the basis of the statutory claim after the constitutional claim had become moot and the three-judge court had dissolved itself.
The three-judge court specifically refused to decide whether it could have exercised pendent jurisdiction to rule on the statutory claim after it had determined that the constitutional claim was moot. 304 F. Supp. at 1356 (1969). In remanding the case to the single district judge for "appropriate" action the court did not decide whether he could exercise such jurisdiction.
The single district judge ruled that it was proper for him to assert pendent jurisdiction over the statutory claim. 304 F. Supp. 1356 (1969). We find this conclusion to have been in error.
The assertion of a constitutional claim required the convening of a three-judge district court. 28 U.S.C. § 2281 (1964). That court is the only court which ever had jurisdiction over the constitutional claim. Since the single judge at no time had jurisdiction over the constitutional claim there was never a claim before him to which the statutory claim could have been pendent. If the three-judge court had attempted to give the single judge power to adjudicate the statutory claim, it could not have done so, since with the dissolution of the three-judge court the statutory claim was no longer pendent to any claim at all, much less to any claim over which the single judge could exercise adjudicatory power.
King v. Smith, 392 U.S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968) provides no authority for deciding the pendent statutory claim. There the Court said:
"We intimate no views as to whether and under what circumstances suits challenging state AFDC provisions only on the ground that they are inconsistent with the federal statute may be brought in federal courts." Id. at 312 n. 3, 88 S. Ct. at 2131.
While the Court in King decided a pendent statutory claim, the constitutional claim to which it was pendent remained viable throughout the litigation. The Court exercised jurisdiction over the pendent statutory claim in order to avoid adjudication of the constitutional issue.
Moreover even if we were to accept the overbroad interpretation of the doctrine of pendent jurisdiction urged upon us by appellees, we would hold in the present case that the district judge's exercise of such jurisdiction was an abuse of discretion.
In United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966), it is clear that there are circumstances in which the exercise of pendent jurisdiction is inappropriate. We believe that it is inappropriate here, where, whatever the technical consequences of enjoining enforcement of Section 131-a may be, the practical effect of an injunction is to order the New York legislature to appropriate more funds for welfare.
A federal court should not assert such power over a state legislature unless there is no possible alternative. Even if the district judge had had discretion, he should have refused to rule on the statutory claim.
In King v. Smith, supra, the relief granted, enjoining the application of the Alabama "man in the house" regulation, did not have the effect of requiring the state legislature to appropriate additional funds. By invalidating the state regulation, the court substantially increased the number of eligible aid recipients but it specifically noted that Alabama was "free * * * to determine the level of benefits by the amount of funds it devotes to the program." Id. at 318-319, 88 S. Ct. at 2134 (footnote omitted). See Lampton v. Bonin, 299 F. Supp. 336 (E.D.La.1969) (three-judge court).
The Department of Health, Education and Welfare is now engaged in a study of the relationship between Section 602(a) (23) and Section 131-a. HEW, with its acknowledged expertise in the field of social security, is far better equipped than the federal courts to review an alleged inconsistency between a complex state statutory scheme for payments in behalf of dependent children and an ambiguous amendment to the Social Security Act. The district court, even if it had power to act on the pendent claim, should have declined to do so, at least until HEW had completed its consideration of the matter.
The district judge also found that he had jurisdiction to decide the statutory claim under 28 U.S.C. § 1331 (1964) which provides for jurisdiction over federal questions where "the matter in controversy exceeds the sum or value of $10,000 * * *."
The district judge properly held that the claims of the members of the class may not be aggregated to satisfy the $10,000 requirement. See Snyder v. Harris, 394 U.S. 332, 89 S. Ct. 1053, 22 L. Ed. 2d 319 (1969). He also correctly ruled that "the monetary loss to each of the plaintiffs does not approach $10,000." 304 F. Supp. at 1363. But after finding that appellees could not obtain jurisdiction by showing direct damage of $10,000, the district judge decided that the "indirect damage" they might sustain as a result of their reduced payments was sufficient to satisfy the $10,000 requirement. "Indirect damage" is too speculative to create jurisdiction under Section 1331.
"It is firmly settled law that cases involving rights not capable of valuation in money may not be heard in federal courts where the applicable jurisdictional statute requires that the matter in controversy exceed a certain number of dollars. The rule was laid down in Barry v. Mercein, 46 U.S. (5 How.) 103, 12 L. Ed. 70 (1847), a child custody case. The 'right to the custody, care, and society' of a child, the court noted, 'is evidently utterly incapable of being reduced to any pecuniary standard of value, as it rises superior to money considerations.' 46 U.S. at 120. Since the statute permitted appeals only in those cases where the 'matter in dispute exceeds the sum or value of two thousand dollars,' the court concluded that it was without jurisdiction:
'The words of the act of Congress are plain and unambiguous * * *. There are no words in the law, which by any just interpretation can be held to * * * authorize us to take cognizance of cases to which no test of money value can be applied.' 46 U.S. at 120.
Subsequent decisions have followed this reasoning. See Kurtz v. Moffitt, 115 U.S. 487, 498, 6 S. Ct. 148 29 L. Ed. 458 (1885); First Nat. Bank of Youngstown v. Hughes, 106 U.S. 523, 1 S. Ct. 489, 27 L. Ed. 268 (1882); Giancana v. Johnson, 335 F.2d 366 (7th Cir. 1964), cert denied, 379 U.S. 1001, 85 S. Ct. 718, 13 L. Ed. 2d 702 (1965); Carroll v. Somervell, 116 F.2d 918 (2d Cir. 1941); United States ex rel. Curtiss v. Haviland, 297 F. 431 (2d Cir. 1924); 1 Moore, Federal Practice para. 0.92 (2d ed. 1964)."
Boyd v. Clark, 287 F. Supp. 561, 564 (S.D.N.Y.1968), (three-judge court), aff'd on another issue, 393 U.S. 316, 89 S. Ct. 553, 21 L. ...