Wheeler v. Montgomery Trial Brief and Brief in Support of Motion for Preliminary Injunction

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/

1

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

MAE WHEELER, individually and on )
behalf of all others similarly )
situated, )

)Plaintiffs, )
)

vs. )
)JOHN MONTGOMERY, individually and ) Civil Action No. 48303in his capacity as DIRECTOR OF THE )

CALIFORNIA STATE DEPARTMENT OF PUBLIC )
WELFARE, and RONALD BORN, individu- )ally and in his capacity as GENERAL )
MANAGER OF THE SAN FRANCISCO CITY AND )
COUNTY DEPARTMENT OF SOCIAL WELFARE, )

)Defendants. )
______________________________________________ )

TRIAL BRIEF AND BRIEF IN SUPPORT OF 
MOTION FOR PRELIMINARY INJUNCTION

PETER Eo SITKIN,
ARTHUR M. SCHAFFER,
GILBERT T. GRAHAM,
Attorneys for Plaintiffs,

1095 Market Street,
San Francisco, California 94103.

Telephone: (415) 626-3811
STEVEN J. ANTLER,
ROBERT F. SPENCE,
LEROY CLARK,
CHARLES S. RALSTON,
BRIAN GLICK,
HENRY FREEDMAN,
EDWARD V. SPARER,

Of Counsel



TABLE OF CONTENTS
Page

Number
STATEMENT OF THE CASE,..0. » • « o » • « 1
JURISDICTION. 2
PRELIMINARY STATEMENT 3
STATEMENT OF FACTS. o • • • • • • 5
ISSUES PRESENTED. 8

STATUTES INVOLVED
POINT ONE

POINT TWO

POINT THREE

OAS RECIPIENTS RECEIVE PUBLIC 
ASSISTANCE AS A MATTER OF 
STATUTORY RIGHT..................
TERMINATION OF THE GRANTS OF OAS 
RECIPIENTS WITHOUT AN OPPORTUNITY 
FOR A HEARING PRIOR THERETO VIO­
LATES THE DUE PROCESS CLAUSE OF 
THE FOURTEENTH AMENEMENT........ .
THE TYPE OF HEARING DUE PROCESS 
REQUIRES MUST BE DETERMINED WITHIN 
THE CONTEXT OF THE SYSTEM IN WHICH IT WILL OPERATE...................

9

10

12

14
A. The specific application of due process

to the welfare system.......................  14
B. The recipient and the welfare system......... 14
C. The fair hearing system.................. .. . ig
D. Due process requires this court to order 

that public assistance must be granted 
to a recipient who appeals the threat­
ened termination of his aid until the
state renders its fair hearing decision.....  18

POINT FOUR - DEFENDANTS' ADOPTED REGULATION DOES 
NOT MEET THE MINIMUM STANDARDS OFDUE PROCESS. .... .....................  2 3

A. Impartial state referee.....................  24
B. Notice.......... ............................ 27



ii

C. Burden of proof.....    28
D. Record......................   29
E. Confrontation and cross-examination.......    29
F. Defendants are in error in relying on

Thorpe and Dixon to sustain their
regulation................................  31

1. Thorpe v. Housing Authority,
368 U.S. 670 (1967)...................  31

2. Dixon v. Alabama State Board of
Education, supra......................  33

POINT FIVE - A PRELIMINARY INJUNCTION IS REQUIRED
TO PROTECT THE CLASS OF OAS RECIPIENTS 
WHICH PLAINTIFF REPRESENTS FROM 
IRREPARABLE INJURY........ . . .......... 3 5

A. Preliminary relief sought...................  35
B. The prerequisites for bringing a classaction have been met......................  35
C. Preliminary relief should be grantedin the instant case.......................  37

1• Terminated recipients awaiting a
fair hearing decision.................  38

2. Recently terminated recipients..........  39
3. Future terminations.....................  39

Page
Number

Conclusion 42



ill

Table of Authorities

1. Abrams v. Jones,
35 Idaho 532, 207 Pac. 724 (1922)............. 25

2. Armstrong v. Manzo,
380 U.S. 545, 552 (1965)...................... 20

3. Beard v. Stahr,
370 U„S„ 41 (1962)............................ 28

4. Bell Lines, Inc, v. U.S,,
263 F. Supp. 40 (S.D. W. Va. 1967)............ 29

5. Birnbaum v. Trussel,
371 F.2d 672 (2d Cir. 1966)...................  13

6. Board of Social Welfare v. County of Los Angeles,
27 Cal. 2d 81, 162 P.2d 630 (1945)........... . 10

7. Cole v. Young,
351 U.S. 536 (1956)...........................  13

8. Colletti Travel Service, Inc, v. U.S.,
263 F. Supp. 302 (U.S.D.C. Rhode Island 1966).. 29

9. County of Alameda v. Janssen,
16 Cal. 2d 276 (1940).........................  10

10. County of Los Angeles v. Frisbee,
19 Cal. 2d 634 (1942)......................... 11

11. County of Los Angeles v, Payne,
8 Cal. 2d 563 (1937).......................... 10

12. County of Sacramento v. Chambers,
33 Cal. App. 142 (1917)......r ...............  10

13. Damico v. California,
88 S. Ct. 526, 19 L. Ed. 2d 647 (1967)........  2

14. Dixon v. Alabama State Board of Education,.
294 F.2d 150 (5th Cir. 1961)..................  3, 16, 33

15. Goldsmith v. Board of Tax Appeals,
270 U.S. 117, 123 (1926)......................  13

PageNumber



I V

16. Gonzales v. Freeman, 13,
334 F.2d 570 (D.C. Cir. 1964)................. 30

17. Greene v. McElroy, 13,
360 U.S. 474 (1959)........................... 29

18. Henry v. Greenville Airport Comm'n,
284 F.2d 631, 633 (4th Cir. 1960)............. 38

19. Hornsby v. Allen, 13,326 F . 2 d 605 (5th Cir. 1954).................. 30
20. In Re Murchison,349 U.S. 133,' 136, 137 (1955).................  25
21. Johnson v. Robinson,____ F. Supp. ____-(Civil Action No. 67-C-1883,

N.D. 111., December 29, 196 7).............. . 41
22. Joint Anti-Fascist Refugee Committee v, McGrath, 14,

341 U.S. 123, 163............................... 33
23. Kwong Hai Chew v. Colding,

344 U.S. 590, 597-598 (1953).....................  13
24. Londoner v. Denver,

210 U.S. 373 (1908)............................. 12
25. Mantell v. Dandridge,____ F. Supp. ____ (Civil Action No. 18792,

D. Md. , December 4, 1967)....................  41
26. McNeese v. Board of Education,

373 U.S. 668 (1963).............................  2
27. Monroe v. Pape,

365 U.S. 167 (1961).........*.............. 2
28. Morgan v. U.S.,

298 U.S. 468 (1936).......................   14
29. Morgan v. United States,

304 U.S. 1, 18, 19 (1937).....................  12

Page
Number



V

30. Nash v. Florida Industrial Commission,
____ U.S. ____ (1968) (36 Law Week 4046)......  21

Page
Number

31. National Labor Relations Board v. Prettyman, 14,
117 F.2d 786 (6th Cir. 1941)..................  27, 29

32. Ohio Bell Telephone v. Public 
Utilities Commission,

301 U.S. 292 (1937)...........................  20
33. Ohio Bell Telephone v. Public

Utilities Commission of Ohio, 25,
301 U.S. 292 (1932).................... ....... 29

34. Opp Cotton Mills v. Administrator, 12,
312 U.S. 126 (1941)............................. 33

35. Perry v. Perry, 37,
190 Fo2d 601, 602 (D.C. Cir. 1951).......... . . 38

36. Ramos v. Health and Social Services Board,
(Civil Action No. 67-C-329,
EoD. Wise., November 7, 1967)................ . 40

37 o Ramos v. Health & Social Services Board 
of State of Wis.,
276 Fo Supp. 474 (E.D„ Wis. 1967).............  41

38. Rios v. Hackney,
____ F. Supp. ____ (Civil Action No. CA 3-1852,
N.D. Texas, November 30, 1967).................. 30

39. Slochower v. Board of Education,
350 U.S. 551 (1956)............................. 13

40. Smith v. King,
277 F. Supp. 31, 38 (N.D. Ala* 1967)..........  11

41. Thorpe v. Housing Authority,
368 U.S. 670 (1967).................... ....... 31

42. United States v. Illinois Central R. Co.,'
291 U.S. 457, 463 (1934)......................   12



VI

43. U.S. v. Chicago, Milwaukee, St. Paul 
and Pacific Railroad Company,
294 U.S. 499 (1935)..........................  29

44. Wasson v. Trowbridge,
382 F .2d 807 (2d Cir. 1967)...................  25

45. Willner v. Committee on Character and Fitness,
373 U.S. 96 (1963)............................ 13

46. Wong Yang Sung v. McGrath,
339 U.S. 33 (1950)............................ 26

47. Wood v. Hoy,266 F.2d 825 (9th Cir. 1959)..................  28
48. Yakus v. United States,

321 U.S. 414, 441 (1944)......................  37
49. Youngstown Sheet & Tube Co. v. Sawyer,

103 F. Supp. 569 (D. D.C. 1952), aff'd
(on other grounds) , 343 U.S. 579 (1952).......  38

50. Zwickler v. Koota, , .
88 S. Ct. 391, 19 L. Ed. 2d 444 (1967)........ 2

Other Authorities
1. Briar, Welfare from Below; Recipients1

Views of the Welfare System, 14,
54 Calif. L . R. 370 (1966).....................  16

2. Burris, Constitutional Due Process Hearing Require­
ments in the Administration of Public Assistance,

16 Am. U.L. Rev. 199, 218 ff.« (1967)..........  23
3. Federal Handbook of Public Assistance 18,

Administration, 25,§ 62 00(3) (d).................................. Appendix
4. Note, Federal Judicial Review of State 

Welfare Practices,
67 Colum.L. Rev. 84 (1967)......................  2

Page
Number



V  1 1

Page
Number

5. Note, Withdrawal of Public Welfare;
The Right to a Prior Hearing,

76 Yale L. J. 1234, 1244 (1967)............... 22
6. Note, 76 Yale L.J. 1242 ......................... 19
7. Reich, Midnight Searches and the 

Social Security Act,
72 Yale L.J. 1347, 1359-1360 (1963)...........  15

8. Scholz, Hearings in Public Assistance,
Social Security Bulletin, July 1948 at p. 3.... 18

9. Schottland, The Social Security Program 
in the United States,
at page 94 (1963)............................. 11

10. Silver, How to Handle a Welfare Case,
IV Law in Transition Quarterly,94 Fn. 31 (1967)..............................  16

11. Wedemeyer & Moore, The American Welfare System,
54 Calif. L.Ro 326 (1966).....................  14

♦



1

This is a suit for injunctive and declaratory relief 
authorized by Title 42, U„S0C., § 1983, to secure rights, priv­
ileges and immunities established by the Fourteenth Amendment 
to the Constitution of the United States and the Social Security 
Act, Title 42, U„S„C., §§ 301, et seq., and the regulations 
promulgated thereunder.

The injunctive and declaratory relief sought relates 
to the procedure set forth in California Welfare and Institu­
tions Code, §§ 12200, 12201 and 10950, et. seq., and the regula­
tions promulgated thereunder, on their face and as interpreted 
and applied by defendants, wherein financial aid provided to 
plaintiff Mae Wheeler and others similarly situated, through 
the Old Age Security (OAS) program is terminated without ade­
quate and reasonable notice and an opportunity for a prior 
hearing which satisfies the standards of due process of law 
and the Social Security Act.

This suit was commenced on November 30, 1967. On 
December 6, 1967, a temporary restraining order was issued 
by Judge Alfonso J. Zirpoli, to avoid irreparable injury to 
the named plaintiff, restraining the defendants:

" . . .  from enforcing against the plaintiff the pro­
visions of Welfare and Institutions Code, Sections 12200, 12201 and 10950, et seq. and the implementing rules and 
regulations of the State Department of Social Welfare so 
chat Old Age Assistance (OAS) shall be restored to plain­
tiff Mae Wheeler forthwith . . . until such time as a 
determination is made by this Court regarding plaintiff's 
application for convening a Three Judge Court pursuant to 
Title 28, U.S.C., §§ 2281 and 2284."

STATEMENT OF THE CASE



2

On December 20, 1967, Judge Zirpoli granted plain­
tiff's application for the convening of a three-judge court 
to determine the matters herein and also ordered that pursu­
ant to Fed. R. Civ. P0 23 (a), (b)(2), (c)(1) and (d)(2):

". o .a class action for declaratory and injunc­
tive relief may be maintained, the class to consist of all recipients of old age benefits subject to California 
termination statutes."

JURISDICTION
The jurisdiction of this court is invoked under 

Title 28 UoS.C. §§ 1343(3) and 1343(4), providing for orig­
inal jurisdiction of this court in suits authorized by Title 
42 U.S„C. § 1983; jurisdiction is further conferred on this 
court by Title 28 U.S.C. §§ 2201 and 2202 relating to decla­
ratory judgments. In accordance with Title 28 U.S.C. §§ 2281 
and 2284, a three-judge court has been convened to determine 
the issues herein. This being an action authorized by Title 
42 U.S.C. § 1983, abundant jurisdictional precedent exists.
See, e.g., Zwickler v. Koota, 88 S. Ct. 391, 19 L. Ed. 2d 444 
(1967); McNeese v. Board of Education, 373 U 0S. 668 (1963); 
Monroe v. Pape, 365 U.S. 167 (1961). For a useful review 
of the jurisdictional basis, plaintiffs respectfully refer 
the court to the Note, Federal Judicial Review of State Welfare 
Practices, 67 Colum. L 0 Rev. 84 (1967). The Supreme Court 
most recently passed upon the jurisdiction of 'federal courts 
in public assistance cases in Damico v. California, 88 S. Ct. 
526, 19 L. Ed. 2d 647 (1967).



3

In California a recipient of OAS receives public 
assistance as a matter of right. As in the case of plain­
tiff Mae Wheeler, an elderly diabetic woman of 75, regular 
monthly OAS payments make the difference between subsistence 
and starvation. All parties to this action now agree that 
opportunity for a hearing must precede termination of public 
assistance. At present, the state fair hearing comes well 
after termination of aid.

Since the financial assistance provided by OAS is 
necessary for recipients to have even minimally adequate 
health, care, food and other necessities, the subsequent 
hearing— even though it may vindicate the recipient legally—  
cannot possibly recompense the recipient for the hunger and 
suffering resulting from the termination of aid without a 
prior hearing.

The Due Process Clause of the Fourteenth Amendment 
requires that the hearing afforded welfare recipients be 
adopted to their particular needs. Fortunately, within the 
welfare system a hearing designed to provide the elements 
of fundamental fairness already exists. This hearing— the 
fair hearing— has been developed and refined by the Depart­
ment of Health, Education and Welfare (HEW) over the past 
thirty years.

Defendants have attempted to meet the obvious con­
stitutional violation in their procedures by adopting a

PRELIMINARY STATEMENT



4

regulation which at best can be interpreted as providing for 
an informal prehearing conference. The regulation is wholly 
inadequate to the task before it, that is, to provide an OAS 
recipient before termination with a hearing at which a fair 
determination can be made. Plaintiffs contend that nothing 
short of the existing fair hearing, now provided after termi­
nation, will meet the minimum standards of due process.

When a vital interest, such as the right to life 
or to receive minimum subsistence is at stake, the procedural 
safeguards afforded the individual must be great. This is 
especially so when viewed in light of the resources and abil­
ities of the individuals affected, and when viewed against 
the fact that no state interest, other than economy, is 
threatened.

Finally, plaintiffs contend that the probability 
of success on the merits in this action is sufficiently 
strong in light of the serious constitutional violations 
already acknowledged to exist by defendants to warrant the 
granting of a preliminary injunction.



5

Plaintiff, Mae Wheeler, a 75-year old widow, had 
been receiving OAS continuously and in varying amounts since 
December 1959, to supplement her Social Security benefits, 
currently in the amount of $44.60 per month. Although suffer­
ing from a heart condition and diabetes, she lives alone in a 
San Francisco Housing Authority apartment. [Defendants' 
Exhibit A, p. 3.]

Defendant county received an anonymous telephone 
call on August 30, 1967, concerning plaintiff's eligibility 
for OAS. Plaintiff was contacted by defendant county on 
August 30, 1967, and in that telephone conversation plaintiff 
stated that she had received and subsequently transferred 
during April 196 7, the proceeds of a check in the sum of 
$4,582.15 to her grandson, Bobby Lee Wheeler, in accordance 
with her deceased son's deathbed wish. [Pre-Trial Order 
(hereinafter sometimes called PTO), p. 5.]

Defendant county discontinued Mrs. Wheeler's OAS 
grant effective August 31, 1967. [Defendants' Exhibit A, 
p. 2.] During September, October and November 1967, Mrs. 
Wheeler did not receive any public assistance. [PTO, p. 5.] 

Mrs. Wheeler, with the help of a social worker from 
the Public Housing Authority attended numerous conferences 
with county welfare personnel to explain the disposition of 
the funds she had received and to attempt to have her aid 
restored. [Ibid.]

STATEMENT OF FACTS



6

On November 2, 1967, the county, having weighed the 
evidence presented, concluded that Mrs. Wheeler's transfer of 
her son's insurance was, in fact, to maintain her eligibility 
for OAS. The county, therefore, confirmed its discontinuance 
of Mrs. Wheeler's OAS and requested repayment of assistance 
granted between May 1, 1967 and August 31, 1967. [Defendants' 
Exhibit A, p. 4.]

On November 16, 1967, plaintiff filed an appeal 
with defendant John Montgomery, Director of the Department 
of Social Welfare, and requested a fair hearing, together 
with a further request that her aid be restored and continued 
pending a decision after said hearing. The hearing was held 
on December 22, 1967. [PTO, p. 6.]

On January 12, 1968, defendant John Montgomery 
adopted the proposed decision of the hearing officer. 
[Defendants' Exhibit A.] The hearing officer concluded that 
the county department had erroneously terminated Mrs. Wheeler 
as there were no inconsistencies or any other evidence to 
contradict the sworn statements of Mrs. Wheeler or her grand­
son. He found that Mrs. Wheeler's deceased son owed her 
grandson $4,200.00 and that just prior to his death, he had 
asked Mrs. Wheeler to repay this debt from the proceeds of 
his veteran's insurance policy. Because of this deathbed 
request, the hearing officer found that Mrs. Wheeler felt 
she had a moral, if not legal, duty to transfer the proceeds 
of the insurance policy to her grandson.



7

Defendants' withdrawal and termination of Mrs.
Wheeler's OAS grant caused her immediate and irreparable 
injury in that she did not have sufficient funds with which 
to subsist on a day-to-day basis without her full OAS grant.
[PTO, p. 5.] All of the actions of the county with respect 
to Mrs. Wheeler were taken pursuant to the California Welfare 
and Institutions Code and the regulations thereunder. [PTO, 
p. 6. ]

In order to receive federal funds for the state 
OAS program, California statutes and regulations are required 
to confrom to the requirements of the Social Security Act and 
the United States Constitution. [PTO, pp. 4-5.] While the 
defendant county is authorized to grant financial assistance 
under the OAS program, it may do so only in accordance with 
the rules and regulations of the State Department of Social 
Welfare (hereinafter sometimes called SDSW) which are manda­
tory upon all counties. [Declaration of Defendant Born, pp. 2-3.]

If their grants are terminated, OAS recipients have 
a right to a fair hearing before state referees who have the 
power to rule on the validity and constitutionality of OAS 
statutes and regulations. [PTO, pp. 5-7.] However, state 
law and regulations do not permit the continuation of assist­
ance pending the fair hearing. [Declaration of Defendant 
Born, p. 3.] As of January 1968, the average'time from fair 
hearing requests to decision was six months. [PTO, p. 7.]

There were, as of December 1967, 13,964 recipients



8

of OAS in San Francisco County. [Plaintiffs' Exhibit 9.]
Mrs. Wheeler was one of 111 OAS recipients in San Francisco 
County who were discontinued in 1967 because of increased 
personal property holdings. [Plaintiffs' Exhibit 8.] She 
was one of 44 San Francisco OAS recipients who requested a 
fair hearing in 1967. [Plaintiffs' Exhibit 10.]

During fiscal 1967,* on the average of 285,174 indi­
viduals received OAS cash grants monthly in California. The 
average monthly amount granted was $101.51. During the year 
there were 3,164 requests for fair hearings* of these, 382 
requests were filed by OAS recipients; 1,766 requests were 
finally determined by fair hearings and 1,279 requests were 
resolved by other means. [PTO, pp. 6-7.]

On December 1, 1967, there were 1,210 requests for 
fair hearings pending, 116 in the OAS category, including 
the request filed by Mrs. Wheeler. [PTO, p. 7.]

ISSUES PRESENTED
The initial issue presented by the litigation is 

whether the termination, withdrawal or suspension of the 
grants of OAS recipients without an opportunity for adequate 
and reasonable notice and a hearing prior thereto violates 
the due process clause of the Fourteenth Amendment?

*This is the latest period for which the complete sta­
tistics are available.



9

Defendants agree with plaintiffs' contention that 
due process requires a hearing prior to the termination, 
withdrawal or suspension of aid to recipients of the cate­
gorical aid programs.

Thus, the ultimate issue for this court is the scope 
of the hearing required by the due process clause of the Four­
teenth Amendment and the Social Security Act.

STATUTES INVOLVED
The statutes of the State of California, the appli­

cation of which plaintiffs seek to enjoin, are California 
Welfare and Institutions Code, §§ 12200, 12201 and 10950, 
et seq„, and the regulations adopted thereunder.



10

POINT ONE
OAS RECIPIENTS RECEIVE PUBLIC 

ASSISTANCE AS A MATTER OF STATUTORY RIGHT.
Under both federal and California law, a person once 

found eligible receives OAS as a matter of right. Pursuant to 
the requirements set forth in the Social Security Act, the 
California Welfare and Institutions Code states that aid shall 
be granted to any eligibile person. [See § 12050.]

In Board of Social Welfare v. County of Los Angeles, 
27 Cal. 2d 81, 162 P.2d 630 (1945), the California Supreme 
Court held that the county had a mandatory duty to furnish aid 
to an individual as of the date of his eligibility for OAS.
A similar result was reached as early as 1914 in Sacramento 
Orphans & Children's Home v. Chambers, 25 Cal. App. 536, 144 
P. 317 (1914), where it was stated that " . . .  the duty of 
the state to aid helpless minors is affirmed, or at least 
recognized in the California Constitution. . . . "  [At p.
543.] In the same case the court further said that " . . .  
'welfare appropriations‘ are not to be regarded in light of 
charity proceeding." [At p. 544.] See also County of Los 
Angeles v. Payne, 8 Cal. 2d 563 (1937) and County of Sacra­
mento v. chambers, 33 Cal. App» 142 (1917). California cases 
which establish the duty to provide assistance also establish 
the correlative right to receive assistance once one is found 
to be eligible. See Board of Social Welfare v. Los Angeles
County, supra, at page 86; County of Alameda v. Janseen, 16



11

Cal. 2d 276 (1940) at page 281; County of Los Angeles v.
Frisbee, 19 Cal. 2d 634 (1942) at page 639.

A number of commentaries by Social Security Admin­
istration and HEW personnel declare public assistance to be a 
statutory right. Charles I. Schottland, a government official, 
who was privy to the enactment and effectuation of the statute, 
writing in 1963, stated that in all federally-aided public 
assistance programs " . . .  regular monthly payments are made 
to needy persons and such persons have a right to such assist­
ance— a right that will be enforced by the courts." Schott­
land, The Social Security Program in the United States, at 
page 94 (1963) . See also Attmeyer, The Formative Years of 
Social Security, at page 58 (1966)„

Recently, a three-judge federal court stated with 
respect to the Alabama Aid to Dependent Children program 
that:

"As noted earlier, Aid to Dependent Children finan­
cial assistance is a statutory entitlement under both 
the laws of Alabama and the federal Social Security Act, 
and where the child meets the statutory eligibility 
requirements he has a right to receive financial bene­
fits under the program." Smith v. King, 277 F. Supp.
31, 38 (N.D. Ala. 1967).

Indeed, defendants themselves have conceded that once eligible, 
a recipient receives OAS as a matter of statutory right. [PTO, 
p. 4, and Deposition, Mr. Frank Vasquez, Chief Referee, SDSW, 
at page 28,]



12

POINT TWO
TERMINATION OF THE GRANTS OF OAS RECIPIENTS WITHOUT 

AN OPPORTUNITY FOR A HEARING PRIOR THERETO 
VIOLATES THE DUE PROCESS CLAUSE OF 

THE FOURTEENTH AMENDMENT.
Plaintiffs assert and defendants concede that due 

process requires a hearing prior to the termination, with­
drawal or suspension of public assistance. [Pre-Trial Order, 
p. 23].

The Supreme Court has repeatedly held that where 
the individual's essential interests are at stake, final 
government action must await an opportunity for a hearing. 
The Court met this issue as early as 1908 in Londoner v. 
Denver, 210 U.S. 373 (1908), which involved the assessment 
of a municipal street improvement tax. The taxpayer had the 
right to be heard "before the tax became irrevocably fixed." 
210 U.S. at 385. In Opp Cotton Mills v. Administrator, 312 
U.S. 126 (1941), the Court, in upholding the application of 
the minimum-wage standards of the Fair Labor Standards Act 
to a textile manufacturer, stated that due process does "not 
require a hearing at the initial stage or at any particular 
point . . . in an administrative proceeding so long as the
requisite hearing is held before the final order becomes 
effective." 312 U.S. at 152-53. Accord, United States v. 
Illinois Central R. Co., 291 U.S. 457, 463 (19.34); Morgan,_v._ 
United States, 304 U.S. 1, 18-19 (1937) .

More recently the Court has held that due process



13

requires the government to grant opportunity for a hearing 
before it terminates a man's employment, Slochower v. Board 
of Education, 350 U.S. 551 (1956); Cole v. Young, 351 U.S.
536 (1956); cf. Greene v. McElroy, 360 U.S. 474 (1959); 
before it may expel a resident alien, Kwong Hai Chew v^
Colding, 344 U.S. 590, 597-598 (1953) ; before it may deny a 
man a license, or certificate of admission, to practice his 
profession, Willner v. Committee on Character and Fitne_ss,
373 U.S. 96 (1963); Goldsmith v. Board of Tax Appeals, 270 
U.S. 117, 123 (1926). In addition, a number of recent court 
of appeals' decisions have required a hearing before an 
individual is disbarred from receiving government contracts, 
Gonzales v. Freeman, 334 F.2d 570 (D„C. Cir. 1964); before 
a student may be expelled from a state university, Dixon, v̂  
Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961), 
cert denied, 368 U.S „ 930 (1961); before a municipal hospital 
terminates a doctor's employment; Birnbaum v. Trussel, 371 
F.2d 672 (2d Cir. 1966); before a liquor license may be
denied. Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964), 
rehearing denied, 330 F. 2d 55 (5th Cir. 1964) 0



14

POTNT THREE
THE TYPE OF HEARING DUE PROCESS REQUIRES MUST 

BE DETERMINED WITHIN THE CONTEXT OF THE 
SYSTEM IN WHICH IT WILL OPERATE.

A. The specific application of due process to the welfare system.
It is axiomatic that the safeguards embodied in a 

due process hearing for welfare recipients can only be deter­
mined after careful study of the particular system within 
which such a hearing will operate. Joint Anti-Fascist 
Refugee Committee v. McGrath, 341 U.S. 123, 163 (concurring 
opinion, Mr. Justice Frankfurter); National Labor Relations 
Board v. Prettyman, 117 F.2d 786 (6th Cir. 1941); Morgan v. 
U.S., 298 U.S. 468 (1936).

B. The recipient and the welfare system.*
By definition, welfare recipients must be poor.

They are also likely to be uneducated, ignorant of their 
legal rights and dependent upon the welfare agency. [Briar, 
Welfare from Below: Recipients' Views of the Welfare System, 
54 Calif. L.R0 370 (1966).] Although one purpose of public 
assistance is to rehabilitate recipients and return them to

*See, generally, Wedemeyer & Moore, The American Welfare
System, 54 Calif. L „R. 326 (1966).



15

the mainstream of society, the welfare system often further 
isolates and segregates recipients. As President Lyndon B. 
Johnson recently said:

"The welfare system today pleases no one. it is 
criticized by liberals and conservatives, by the poor 
and the wealthy, by social workers and politicians, by 
whites and Negroes in every area of the nation."
[Speech, San Antonio, Texas, January 2, 1968.]

Present laws and regulations require that welfare 
department personnel investigate the intimate details of 
recipients' lives in order to continually be sure that reci­
pients are eligible for the aid they receive. Reich, Midnight 
Searches and the Social Security Act, 72 Yale L.J. 1347, 1359- 
1360 (1963). When the county department errs it errs by 
prematurely terminating aid. In five percent (5%) of the 
cases studied by the State Eligibility Control Unit adult 
recipients were erroneously terminated. [Eligibility Control 
Letter, No. 2064, Plaintiffs' Exhibit 2.] The Control Unit 
concluded that assuming their findings were reflective of the 
universe of such actions, several thousand recipients had their 
grants terminated prematurely. [At p. 1.]

Recipients have one primary remedy to contest 
adverse action by the county welfare department —  the fair 
hearing. However, this remedy is rarely employed. Even 
though there were 23,555 OAS recipients terminated for reasons 
°ther than death in fiscal 1967, only 382 OAS recipients 
filed for hearings. This figure is 1.1 appeals per thousand 
active cases. [See State Department of Social Welfare Annual



16

Report, 1966-1967, Table 61, Plaintiffs' Exhibit 4.] Also, 
termination is only one of several grounds for appeal.

A number of factors explain why appeals are not very 
frequently filed by welfare recipients. Many recipients do 
not know about the appeal process. [Briar, supra, at p. 379.] 
Appeals take a long time from request to decision. [Welfare 
and Institutions Code, §§ 10952, 10958, 10959; Deposition 
of Mr. Frank Vasquez, p. 43.] Even when victorious, the claim­
ant's aid is only reinstated as of the date the check was 
illegally withheld and the county department is not penalized 
in any way. [Silver, How to Handle a Welfare Case, IV Law 
in Transition Quarterly, 94 Fn. 31 (1967).] Assistance from 
lawyers and independent social workers is not available to 
most recipients. Another reason for few appeals was suggested 
in a recent article:

"Finally, the brutal need of the recipient erro­
neously denied assistance will make him all the less 
able to pursue the subsequent hearing now available.
Faced with the need to live somehow, he can scarcely 
devote the time and energy necessary to effectively 
show his continued eligibility on appeal. Because of 
this, it is hardly surprising that recipients rarely 
even request a hearing after the administrator stops 
payments. In Illinois, for instance, appeals were 
filed in less than one-third of one percent of the 
33,000 public assistance cases closed between July,
1963 and June, 1964 for reasons other than death of 
the recipient." Note 76 Yale L.J0 1239, 1244 (1967).

C. The fair hearing system.
Courts, when faced with cases raising the right to 

a hearing, have had no established hearing procedure to rely 
upon. See, e.g., Dixon, supra. These courts in an attempt



17

to reach a just result have, -therefore, analogized to comparable 
situations, balanced the individuals' interests with the inter­
ests of the public body or applied equitable doctrines.

In contrast, in the present case, the federal govern­
ment has developed, through 30 years1 experience, a hearing 
procedure particularly suited to the welfare system. The 
special disabilities of welfare recipients and their utter 
dependence on the system for their minimum subsistence led to 
the development of the procedural rights of the present fair 
hearing system,, This system was instituted by HEW in order 
to meet the particular needs of public assistance adminis­
tration.

HEW's regulations contain the elements of a hearing 
which meet the requirements of fundamental fairness. Every 
state welfare plan must contain, in part, the following pro­
visions:

"l. For specific designation of responsibility within the agency for conduct of hearings,
"2. For rendering decisions that are binding on the State and local agency, and
"3. For establishing hearing procedures to assurethat:

"d. The hearing will be conducted by an im­
partial official (or officials) of the State agency.

"g. The claimant has the opportunity (1) to 
examine all documents and records used at the hear­
ing; (2) at his option, to present his case himself 
or with the aid of others, including counsel; (3) to bring witnesses; (4) to establish all pertinent



18

facts and circumstances; (5) to advance any arguments 
without undue interference; and (6) to question or refute any testimony or evidence."

(See Appendix attached hereto for the full federal Handbook 
of Public Assistance Administration sections governing fair 
hearings.)

In 1935, when the Social Security Act went into 
effect, there were no precedents for hearings in public assis­
tance. The states each drafted their own hearing procedures.

"After 6 years of operation, the Social Security Board issued a set of recommended standards to be used 
by State agencies as a guide in clarifying their proce­
dures. After 6 more years of observing, comparing, 
analyzing and weighing the various procedures developed 
by the States, the Social Security Administration issued 
a new policy statement on hearings. This release estab­
lished definite procedural requirements based on the 
experience gained." Scholz, Bernard W., Hearinqs in 
Public Assistance, Social Security Bulletin, July 1948, at page 3.

Any termination of aid without the provision of a 
hearing embodying the standards of the "fair hearing" is a 
sham and a fraud. Given the needs of the terminated welfare 
recipients this court should order more safeguards for the 
recipients rather than less.

D. Due process requires this court to order that public 
assistance must be granted to a recipient who appeals 
the threatened termination of his aid until the state renders its fair hearing decision.

Public assistance benefits are calculated to meet 
recipients1 minimum needs for living after all other income 
is considered. Therefore, during the period of time in which 
the recipient is waiting for a hearing decision, he is living



19

below the level which defendants themselves state to be 
necessary for survival and decency. Such suffering, danger­
ous to the maintenance of life, cannot be remedied once 
endured. As noted in a recent Yale Law Journal article:

"The dispositive consideration is that a subsequent 
hearing cannot rectify a prior mistake if the needy reci­
pient was in fact eligible, and if the state guessed 
wrong in terminating or suspending his assistance, he will 
have been denied the aid necessary for his basic suste­
nance. The requirement in all states that those seeking 
public assistance dispose of all their assets in excess 
of a stated amount makes this danger all the more real.

"This factor does more than show the stark need the 
recipient will face when payments are erroneously denied. 
In all cases where he has disposed of assets to become 
eligible for assistance, the individual has a strong 
reliance claim to a due process hearing before his pay­
ments are cut off. The government has induced him to 
change his position and has therefore incurred a special 
obligation to treat him fairly." 76 Yale L.J. 1242.

In cases involving less compelling interests than 
the right to life and minimal subsistence, courts have held 
that due process requires a full adjudicatory hearing. Thus, 
for example, the Supreme Court, in ruling that a hearing was 
required prior to the entry of an order by the Public Utilities 
Commission directing a telephone rate refund, stated:

"Regulatory commissions have been invested with 
broad powers within the sphere of duty assigned to them by law. Even in Quasi-judicial proceedings their in­
formed and expert judgment exacts and receives a proper 
deference from courts when it has been reached with due 
submission to constitutional restraints. Indeed, much 
that they do within the realm of administrative discre­
tion is exempt from supervision if those restraints 
have been obeyed. All the more insistent is the need, 
when power has been bestowed so freely, that the 1inex- 
plorable safeguard1 of a fair and open hearing be main­
tained in its integrity. The right to such a hearing



20

is one of the rudiments of fair play assured to every 
litigant by the 14th Amendment as a minimal requirement. 
There can be no compromise on footing of convenience or 
expediency, or because of a natural desire to be rid of 
harassing delay, when that minimal requirement has been 
neglected or ignored." Ohio Bell Telephone Co. v. Public 
Utilities Comm., 301 U.S. 292 (1937).

The facts in the instant case demonstrate the import­
ance of a fair hearing before aid is terminated. Here, the 
county decision to terminate was found to be in error by the 
impartial state referee presiding at the fair hearing. In 
fact, the hearing officer, in his decision indicated that no 
evidence had been presented by the county to support the 
termination of Mae Wheeler's aid. Mrs. Wheeler underwent 
severe hardships as a result of the termination of her OAS. 
Without court intervention, Mrs. Wheeler would, in all proba­
bility, still be waiting for a hearing decision. She would 
be without her OAS even though she was given an opportunity 
to provide the county with evidence of her eligibility at 
an informal conference held before a responsible county offi­
cial .

As the Supreme Court said in Armstrong v. Manzo,
380 U.S. 545, 552 (1965), the opportunity to be heard ". . . 
must be granted at a meaningful time and in a meaningful 
manner." California would grant the opportunity for a fair 
hearing only after a welfare department had acted to alter 
radically the claimant's position vis-a-vis the agency. The 
process of appeal makes the claimant sustain more than the 
burden of proof, it imposing the burden of life itself.

The Supreme Court recently recognized that a future



21

award of money can mean little to a person of modest means 
faced with immediate economic hardship. Nash v. Florida
Industrial Commission, ______ U.S.______(1968) (36 Law Week
4046) .

Since the fair hearing system is already an integral 
and required part of welfare administration, the State's re­
sistance to continuing aid until the fair hearing decision 
appears to be based on economic considerations.* The two 
items of increased cost for the State will be additional 
referees and hearing expenses and the additional amount of 
aid paid to recipients pending the hearing decision.

The major portion of this increased cost will be 
borne by the federal government which contributes approxi­
mately 50% of the administrative and assistance costs in the 
categorical aid program. HEW has specifically stated that 
federal financial participation is available to California 
if aid payments continue until a fair hearing decision is 
rendered. [Letter of St. John Barrett, Deputy General Counsel, 
HEW, to Peter E. Sitkin, Plaintiff's Exhibit 1.]

*It should be noted that any hearing before termination 
of assistance will cost the State some money. Even the informal 
conference provided in the State's regulation will require an 
amount of caseworkers' time and, therefore, require the hiring 
of additional caseworkers.



22

The State of Mississippi recently proposed a prior 
fair hearing system which gives the recipient ten days notice 
of the county's intention to terminate. If a recipient requests 
a hearing within the ten days, aid will be continued pending 
the decision; if no hearing is requested aid will be termina­
ted. *

New York State, which holds a large number of fair 
hearings, requires that a full fair hearing in cases of sus­
pension or discontinuance be held within ten working days from 
receipt of the hearing request, and that a decision must be 
rendered within 12 working days from the hearing date. [18 
NYCRR 84.6, 84.15.] If New York can observe these time limits 
then so can California. On this basis if aid were continued, 
a recipient would only receive, at most, one additional wel­
fare check while awaiting the fair hearing decision. After 
reviewing the balance between individual deprivation and the 
public purse, one author has concluded:

"Taken together, these considerations compel the 
conclusion that the government interest in guarding the 
public treasury by postponing hearings should not justi­
fy subordination of the private interest in the indivi­
dual case, and, _a fortiori, in the totality of cases.
The recipient should have a constitutional right to a 
hearing before his welfare payments are discontinued."
Note: Withdrawal of Public Welfare: The Right to a
Prior Hearing, 76 Yale L„J. 1234, 1244 (1967).

♦Memorandum to Mississippi County Welfare Depart­
ments. Re: Changes ih Policy on Appeals and Fair Hearings - 
Revisions for Public Assistance Manual dated November 15, 1967.



23

POINT FOUR
DEFENDANTS' ADOPTED REGULATION DOES NOT MEET THE 

MINIMUM STANDARDS OF DUE PROCESS.
Due process requires that nothing less than the 

opportunity for a Social Security Act "fair hearing" be affor­
ded OAS recipients before the termination of their grants. 
Indeed, an analysis of existing authority indicates that a 
compelling constitutional argument can be made for a hearing 
which provides a welfare recipient more procedural safeguards 
than is presently provided in the "fair hearing." The 
authors of a recent article in the American University Law 
Review concluded after extensive research that a public 
assistance hearing must contain, at a minimum, the following 
elements: notice, discovery, right to counsel, oral hearing,
confrontation, cross-examination, impartial tribunal, decision 
on the record and judicial review. Constitutional Due Process 
Hearing Requirements in the Administration of Public Assist­
ance, 16 Am. U.L. Rev. 199, 218 ff. (1967). It has also been
forcefully asserted that a welfare recipient has the right to 
a "full trial type hearing." Note: Withdrawal of Public
Welfare: The Right to a Prior Hearing, 76 Yale L.J. 1234,
1239 (1967).

At best, the adopted regulation can be interpreted 
to provide only for an informal conference prior to termina­
tion. In no event can it be considered to meet minimum due 
process standards. The regulation:



24

(a) fails to provide for an impartial state 
referee;

(b) does not permit a recipient adequate time to 
prepare for the conference;

(c) places the burden of proof on the recipient;
(d) does not require a record or a decision based 

upon the evidence adduced at the conference; and
(e) significantly does not provide for confronta­

tion and cross-examination.

A. Impartial State Referee.
The adopted regulation provides for an informal 

conference before the "caseworker or another responsible 
person in the county department."

As has been noted earlier, Mrs. Wheeler was affor­
ded an opportunity to have an informal conference with her 
caseworker and another responsible person in the county depart 
ment (the county appeals officer). Her request for restora­
tion was denied even though no evidence contrary to her posi­
tion was presented. The informal conference provided in 
defendants1 regulation has been offered to terminated OAS 
recipients as a matter of general practice in San Francisco.*

Informal conferences (presided over by the very indi 
viduals who either made the initial decision to terminate or

*Deposition of Mary Jane Rand discussing the notice and 
informal conference provided Mae Wheeler and the fact that 
such notice and conference is given as a matter of general 
practice, January 15, 1968, pp. 8 to 16.



25

who, in the alternative, will assert the county's position 
against the recipient in a subsequent fair hearing) are lack­
ing in impartiality. In Wasson v. Trowbridge, 382 F.2d 807 
(2d Cir. 1967), the court recognized:

"It is too clear to require argument or citation 
that a fair hearing presupposes an impartial trier of 
fact and that prior official involvement in a case 
renders impartiality most difficult to maintain."(P. 813.]

Due process requires a referee who is not both investigator 
and judge, arbiter and advocate in the same cause. Ohio Bell 
Telephone v. Public Utilities Commission of Ohio, 301 U.S. 292 
<1932)‘ In re Murchison, 349 U.S. 133, 136-137 (1955); Abrams 
v. Jones, 35 Idaho 532, 207 Pac. 724 (1922).

This principle of separation of function finds 
clear expression in the HEW fair hearing regulations which 
require the states to have their hearings conducted by an 
impartial official (or officials) of the state agency."

Federal Handbook, § 6200(3)(d). The HEW interpretation of 
this section states:

"Impartial official means that the hearing officer has not been involved in any way with the action in 
question. Any person who had advised or given consul­
tation in any way on the question at issue is disquali­
fied as the hearing officer on that case. For example, 
a field supervisor who has advised the local agency in 
the handling of the case would be disqualified." [§ 6334.]

Similar requirements are placed on all federal administrative
agencies by Section 5(c) of the Administrative Procedure Act.
5 U.SoC0, § 1004 (1964) „ So important is this principle of
separation of function to administrative fairness, that Justice



26

Jackson in Wong Yang Sung v. McGrath, 339 U.S. 33 (1950) said 
it was the basic purpose and principal contribution of the 
Administrative Procedure Act.

County personnel cannot adequately function as 
hearing officers because of the relationship of the counties 
to the SDSW. Day-to-day administration of the OAS program is 
left to the counties while the policy and regulations are made 
at the state level.

County personnel are unable to independently resolve 
many issues which arise in fair hearing requests, because they 
are obliged to follow the rules and regulations of the SDSW. 
[Declaration of Ronald Born, pp. 2-3; see also PTO, p.6.]
For example, see the statement by Mary Jane Rand explaining 
that because of Welfare and Institutions Code, § 15001; "The 
County could not resolve the issue with our client. There­
fore the situation had to go to a Fair Hearing." [Emphasis 
added.] [Statement of Mary Jane Rand, enclosed with statis­
tics, p. 3, Plaintiffs' Exhibit 10.]

State fair hearing referees, on the other hand, have 
the power and authority to rule upon the validity of both 
state regulations and statutes. [Deposition of Frank Vasquez, 
p. 15) see also PTO, p. 7.] Thus, if a recipient had to 
challenge the validity of a statute or regulation asserted 
by the county to deny her benefits, she would-be unable to 
receive a hearing on such an issue until after termination.



27

B. Notice.
The regulation focuses almost exclusively on the 

type of notice given a recipient. Yet, the regulation 
utterly fails to provide a reasonable period of time to pre­
pare for the hearing.

Davis, in his Treatise on Administrative Law, Vol. 
1, § 8.05, states: ”. . .  the key to pleading and notice in
the administrative process is adequate opportunity to pre­
pare . . . "  [At p. 530.] See also N 0L .R„B. v. Prettyman.
--uPr-̂ ' j i i A r _v. American Potash & Chemical Corp., 98 F.2d
488 (9th Cir. 1938); Armstrong v. Manzo. supra.

The regulation provides that a recipient who is to 
be terminated will receive at least three days' notice prior 
to the withholding of a warrant. PSSM 44-325.43. The regul­
ation further provides that the notice shall inform the 
recipient, .inter alia, that least one day prior to the with­
holding date, an informal conference will be held. Thus, 
a recipient must be able to prepare all of the information 
required to reestablish eligibility within a period of two 
days or have his grant withheld. Not even summary eviction 
proceedings usually involving only the issue of nonpayment 
of rent are resolved this promptly. Moreover, the recipient 
has no time to engage in discovery or review the evidence to



28

be presented against him prior to the informal conference. 
Present fair hearing procedure provides the recipient 
with at least ten days'notice before the date of the hear­
ing. Welfare and Institutions Code § 10952.

C. Burden of Proof.
Contrary to the provisions of the adopted regula­

tion, the burden of proof must be on the county to establish 
ineligibility. Beard v. Stahr, 370 U.S„ 41 (1962) (dissent­
ing opinion); Kwong Hai chew v. Rogers, supra; Wood v. Hoy, 
266 F.2d 825 (9th Cir. 1959).

In Beard, supra, the court majority dismissed 
the complaint ruling that the case was premature, but 
Justices Black and Douglas, dissenting, reached the merits 
of plaintiff's contention that an army officer should not 
carry the burden of proof in dismissal proceedings and 
stated:

"Dismissal is one thing; dismissal with stigma., as here, is quite another,, in comparable situations 
the Court has been required to carry the burden of 
proof. Unless this burden is meticulously maintained, 
discharge for race, for religion, for political 
opinion, or for beliefs may masquerade under unproved 
charges. This right, like the right to be heard, is 
basic to our society." [At p. 43.]

The regulation clearly places the burden of proof 
on the recipient to "reestablish eligibility" at the informal 
conference even though an OAS recipient, once found eligible,



29

has a statutory right to welfare; the regulation provides that 
the withheld warrant will be delivered as soon as there is 
eligibility to receive it. [PSSM 44:325.432.] Under the 
regulation, on the basis of an _ex parte decision of the 
county welfare department, a recipient will be found to be 
ineligible and unless the recipient can sustain the burden of 
reestablishing eligibility her warrant will be withheld.

D. Record.
Ihe regulation also fails to provide for a record or 

for a decision which is supported by the evidence adduced at 
the conference. Colletti Travel Service, Inc, v. U.S., 263 
F. Supp. 302 (UoS.D.C. Rhode Island, 1966); Ohio Bell Telephone 
Co. v. Public Utilities Commission of Ohio, supra; Bell Lines, 
Inc, v. U.S., 263 F. Supp. 40 (S„D. W. Va. 1967); U. S„ v. 
Chicago, Milwaukee, St. Paul and Pacific Railroad Company,
294 U.S. 499 (1935) .

Eo Confrontation and Cross-Examination.
A number of recent court decisions establish the 

right to confront and cross-examine at administrative hear­
ings. Willner v. Committee on Character & Fitness, supra, 
p. 103, involving right of confrontation of Bar applicant 
by his accussors; Greene v. McElroy, supra, p. 496, involving 
right of confrontation by government contractor's employee; 
N.L.R.Bo v. Prettyman, supra, p. 70, involving right of 
employer to cross-examine witnesses in a National Labor



30
>1

Relations Board hearing,* Gonzales v. Freeman, supra, p. 578, 
involving right to cross-examine adverse witnesses in a debar­
ment from participating in governmental contracts.

Where a county welfare department had established 
its case at a fair hearing solely on the basis of hearsay evi­
dence contained in the report of a social worker, a Texas 
federal district court reversed the denial of public assist-
ance* £.4p.g. v* Hackney,____F. Supp. _____ (civil Action No.
CA 3-1852, N«,D„ Texas, November 30, 1967) . The court held 
as a matter of due process:

The evidence contained in the caseworker's report could not in any manner be relied upon as a basis for 
J^yiHg the relief sought in the absence of the plain­
tiff s being given an opportunity to cross-examine the 
persons who made the statements contained in the report." [Citing Hornsby v. Allen, supra. 1 Slip opinion at p. 3.*

The Rios court also expressly incorporated the due process safe­
guards set forth in Hornsby v, Allen into the requirements 
for a public assistance fair hearing.

The adopted regulation contemplates only a meeting 
with the county welfare personnel and not with the third
parties who provided the information which prompted county 
action.

If the recipient meets with "another responsible 
person" he will "learn" the information upon which the 
county relies only through second or third party hearsay.
The individual facing termination will "discuss the matter 
informally," but will be unable to question, confront or 
effectively meet the "evidence" 
tution requires.

against him as the Consti-



31

Fo D t̂-g-n<̂ an^s are in error in relying on Thorpe and Dixon sustain their regulation.
1* Thorpe v. Housing Authority, 368 U.S. 670

(1967).
Defendants ’ reliance on the Thorpe case is wholly- 

misplaced. Mrs. Thorpe had been notified of the termination 
of her tenancy by the local public housing authority one day 
after she was elected president of a tenant's organization. 
Judgment of eviction was obtained on the basis of termination 
of the lease although she claimed she had a right to proper 
notice of the charges against her and a hearing. While the 
case was pending in the United States Supreme Court the U. S. 
Department of Housing and Urban Development (HUD) issued a 
binding circular, which led counsel for the tenant to argue 
that the judgment of eviction could be reversed, without any 
reference to the constitutional issues raised, for failure to 
comply with the circular. The Supreme Court stated:

[ T jhe basic procedure [the circular] prescribes 
is to be followed in all eviction proceedings that have not become final. if this procedure were accorded to 
the petitioner, her case would assume a posture quite 
different from the one now presented." [At p. 67 .]

The court then remanded the case to the North Carolina Supreme 
Court for a construction of the circular. The state Supreme 
Court held the circular not to be applicable to the termina­
tion of Mrs. Thorpe’s tenancy, 157 S.E.2d 147 (1967). The 
case is again before the Supreme Court, certiorari being 
granted on March 5, 1968. [36 L.W. 3346.]



32

The Supreme Court never reached the question of what 
minimum notice and hearing standards were required prior to 
termination of Mrs. Thorpe's tenancy. it carefully refrained 
from any comment on the procedural issues raised and did not 
in any way indicate that the HUD requirement would meet due 
process standards.

The text of the adopted welfare regulation and the 
letter to Judge Zirpoli from Deputy Attorney General Mayers, 
dated January 5, 1968, indicate that defendants are attempting 
to meet due process with a Thorpe circular-type regulation; 
that is, the welfare department, prior to termination, will 
tell the recipient of the nature of the information, the 
reason for withholding of a warrant, and will discuss the 
matter "informally" for purposes of "clarification" and 
"possibly resolution." Even assuming, arguendo, that the 
Thorpe circular is sufficient in the public housing area, 
it will not suffice in the case of the termination of welfare 
assistance. When a person is being evicted from public 
housing he has a full judicial hearing before the eviction 
notice becomes final and he loses his apartment. Regardless 
of whether or not he gets a hearing in the Housing Authority, 
he gets one in court.

It may be, as was argued in Thorpe, that the court 
hearing is limited in scope, but at least issues concerning 
the legality of the eviction may be raised. In any event, 
the basic standard enunciated by the Supreme Court that a full



hearing must be given somewhere before the decision of the 
administrative agency becomes final is pro forma satisfied. 
Opp Cotton Mills v. Administrator, supra.

33

2. Dixon v. Alabama State Board of Education, supra.
The Dixon guidelines, standing alone, appear not to 

require a prior state "fair" hearing or the minimum elements 
asserted by plaintiffs to be required by due process standards. 
However, Fifth Circuit guidelines were established only with 
respect to the type of "hearing required prior to the expul­
sion from a state college or university." [At p„ 158.] The 
court, throughout the opinion, recognizes that its view of 
what due process requires is limited to an examination of the 
particular "circumstances and interests of the parties in­
volved,," [At p. 155.]

The test, indeed the analysis undertaken by the 
court, was derived directly from Joint Anti-Fascist Committee 
v. McGrath, supra. The Dixon court, after reviewing the cir­
cumstances of the case and balancing the interests of the 
students and the university, rendered a decision favorable 
to the students. When commenting that no "full dress judicial 
hearing, with the right to cross-examine witnesses, is 
required," the Court specifically states:

"Such a hearing, with the attending publicity and 
disturbance of college activities, might be detrimental 
to the college's educational atmosphere qnd impractical 
to carry out. Nevertheless, the rudiments of an adver­
sary proceeding may be preserved without encroaching upon 
the interests of the college." [At p. 159.]



34

No state interest, comparable to protecting the educational 
atmosphere exists in the instant case and without such a 
compelling interest, a full trial-type hearing is required 
and would have been required, it is submitted, by the Fifth 
Circuit in Dixon.

Finally, in viewing the interests of the students 
Dixon and the interest of a recipient such as Mrs. wheeler 

who faced irreparable injury as a result of the termination 
her welfare grant, it is abundantly clear that greater due 

process protection is required in the case of a recipient 
facing the loss of her only means of survival than is required 
in the case of a student facing the loss of his right to 
attend a public educational institution.

Moreover, not even the requirements of Dixon are not 
met by the adopted regulation. The regulation provides for 
nothing more than an informal conference before the client's 
caseworker or other responsible county official. pixon 
requires "something more than an administrative interview 
with an administrative authority of the college." [At p. 158.]



35

POINT FIVE
A PRELIMINARY INJUNCTION IS REQUIRED TO PROTECT 

THE CLASS OF OAS RECIPIENTS WHICH PLAINTIFF 
REPRESENTS FROM IRREPARABLE INJURY.

A. Preliminary Relief Sought.
Plaintiffs seek at the time of trial a preliminary 

injunction ordering defendants, their successors in office, 
agents and employees:

(i) to cease immediately from terminating, with­
holding, suspending or revoking any OAS recipient's 
grant prior to the granting of adequate and reasonable 
notice and the opportunity for a hearing which satisfies 
the standards of due process of law and the Social Secur­
ity Act;

(ii) to notify all recently terminated OAS reci­
pients (other than those terminated by reason of death) 
that if they believe that their OAS was wrongfully ter­
minated that they may request a due process hearing and 
that pending the hearing and decision that their OAS will 
be restored; and

(iii) to immediately resume OAS payments to all 
terminated OAS recipients who have requested a fair 
hearing to challenge the termination of their grants and 
who are now awaiting final determination of their claims.

B* The Prerequisites For Bringing a Class Action Have Been Met. :
As stated by Judge Zirpoli in his memorandum opinion



36

in the instant case dated December 20, 1967:
"The prayer for declaratory injunctive relief raises 

common questions of law for each member of the class; 
namely, whether a termination of benefits without a prior 
hearing denies a recipient his rights under the United 
States Constitution- All members of the class are gov­
erned by the same California procedure and statutes.

"The court concludes that the prerequisites of 
Fed. R. Civ. P. 23(a) are satisfied. Similarly, the 
requirement of Fed. R. Civ. P. 23(b) is satisfied."
[At p. 5.]

Judge Zirpoli also found that the named plaintiff, 
Mae Wheeler, was an adequate representative of the class of 
OAS recipients and ". . . that the rights of all members of
the class will be protected without the intervention."
[At p. 6.]

Plaintiffs' claims properly form the basis of a 
class action under Rule 23(b)(2) in that the defendants have 
acted or refuse to act on grounds generally applicable to the 
class. The Advisory Committee Note states that Subdivision 
(b)(2) applies when:

" . . .  Action or inaction is directed to a class 
within the meaning of this subdivision even if it has 
taken effect or is threatened only as to one or a few 
members of the class, provided it is based on grounds 
which have general application to the class. Illustra­
tive are various actions in the civil rights field 
where a party is charged with discriminating unlawfully 
against a class, usually one whose members are incapable 
of specific enumeration." [Citations omitted.]

The class herein consists of OAS recipients in 
California. Defendants do not contest plaintiffs' assertion 
that all OAS recipients are similarly affected by the statutes 
and regulations challenged herein. [PTO, pp. 6, 8.] The



latest available statistics indicate that during the year 
ending June 1967, there were on the average 285,174 recipi­
ents of OAS cash grants monthly.

37

C. Preliminary relief should be granted in the instant case.
Plaintiffs' action raises serious issues of consti­

tutional law and there is a substantial possibility that plain­
tiffs will prevail upon the merits of this action. Indeed, 
defendants have already conceded the validity of one of plain­
tiffs' principal contentions.

Plaintiffs bring this action not only to vindicate 
their own private rights but in the public interest as well. 
First, the constant and vigilant application of federal con­
stitutional and statutory standards to state legislation is 
£er JL® a matter of the greatest public concern. Second, the 
well-being of those of our citizens who are most helpless is 
of substantial public interest. Courts have been more liberal 
in granting preliminary relief when the public interest is 
involved:

"Courts of equity may, and frequently do, go much 
further both to give and withhold relief in furtherance 
of the public interest than they are accustomed to go 
when only private interests are involved." Stone, C.J., 
in Yakus v. United States, 321 U.S. 414, 441 (1944).

The decision to grant a preliminary injunction is 
based upon a balancing of many factors:

" . . .  the relative importance of the rights asserted 
and the acts sought to be enjoined, the irreparable nature 
of the injury allegedly flowing from denial of preliminary 
relief, the probability of the ultimate success or failure 
of the suit, the balancing of damage and convenience gen­
erally. . . . "  Perry v. Perry, 190 F.2d 601, 602 (D.C. Cir. 1951).



38

iQie stronger the plaintiff's showing of a likeli­
hood of ultimately prevailing on the merits, the less of a 
showing need he make on the "balancing of the equities."
Perry v. Perry, supra. In Henry v. Greenville Airport Comm'n, 
284 F.2d 631, 633 (4th Cir. 1960), the court stated: "The
District Court has no discretion to deny relief by prelimin­
ary injunction to a person who clearly establishes by undis­
puted evidence that he is being denied a constitutional right." 
See also Youngstown Sheet & Tube Co. v. Sawyer, 103 F. Supp.
569 (D. D.C. 1952), aff1d (on other grounds) 343 U.S. 579 
(1952).

1. Terminated recipients awaiting a fair hearing
decision.

There is no question that the constitutional rights 
OAS recipients who are now awaiting fair hearing decisions 

have been violated. These OAS recipients did not receive any 
hearing before termination. Defendants have conceded that 
termination of an OAS recipient's aid without a prior hearing 
violates due process.

The immediate reinstatement of all those OAS 
recipients who are presently awaiting state fair hearing or 
hearings decisions is required. This relief is capable of 
practical and expedious enforcement and control. The names 
and addresses of such individuals are presently within the 
control of the Chief Referee of the State Department of 
Social Welfare. [Deposition of Frank Vasquez at page 64.]



39

2. Recently terminated recipients.
Plaintiffs request that all recipients terminated

since the entry of the temporary restraining order in this 
case who have not requested fair hearings be notified immedi­
ately that if they believe termination to be illegal or
erroneous they may apply for a fair hearing to contest their 
termination and that their aid will be reinstated pending a 
fair hearing decision. The names and addresses of such indi­
viduals are in the possession of each county welfare depart­
ment. See, e.g., Deposition of Mary Jane Rand, pages 42-43.
If a hearing were then requested by a terminated recipient, 
the State Department of Social Welfare, to whom such a request 
would be sent, could direct the appropriate county to restore 
the recipient to aid pending the fair hearing decision.

3. Future terminations.
Plaintiffs request a preliminary injunction to pre­

vent future terminations under the challenged statutes and 
regulations. in terms of interim relief plaintiffs suggest 
that the statutes be enjoined to the extent that before ter­
mination, recipients be given ten days notice of their right 
to request a fair hearing and if such a hearing is requested, 
then aid should continue, pending the fair hearing decision. 
Such a procedure has recently been proposed for adoption by 
the Mississippi Department of Public Welfare._ (Memorandum to 
Mississippi County Welfare Departments, supra.)

Plaintiffs have shown irreparable injury to have



40

been caused to the named plaintiff Mae Wheeler and Mrs. Wheeler 
has been found to be an adequate representative ofthe class.
The Advisory Committee comments to Civil Practice Rule 23(b)(2) 
indicates that action is directed to the class within the mean­
ing of the subdivision "even if it has taken effect or is threat­
ened only as to one or a few members of the class provided it is 
based on grounds which have general application to the class." 
This interpretation has been applied on behalf of classes com­
posed of welfare recipients by a number of federal courts in 
cases involving the public assistance durational residency 
requirements.

A three-judge federal court in Wisconsin, after 
irreparable injury was shown only with respect to the named 
plaintiff, granted a class temporary restraining order pro­
hibiting the application of Wisconsin's one-year residency 
requirement in categorical public assistance programs. Ramos 
v. Health and Social Services Board (Civil Action No. 67-C-329, 
E.D. Wise., November 7, 1967). The court stated (Judges Fair- 
child, Gordon and Reynolds):

"This Court requires further time for consideration 
of the application for preliminary injunction. Plaintiff 
Loretta Ramos has no source of income and no financial 
resources available to her, and she is unable to sustain 
herself and her children. She faces eviction for nonpay­
ment of rent. There will be irreparable damage to her and 
to her children if defendants continue to deny her assist­
ance without determining her eligibility on other grounds. 
These facts appear in an affidavit on file and have not 
been refuted. There has been no claim that plaintiff is, 
in fact, ineligible for any other reason. The number of 
applicants denied for lack of one year's residence is 
sufficient that there are undoubtedly others in danger of 
irreparable injury if no restraining order is issued." 
[Emphasis supplied.]



41

Two weeks later a preliminary injunction was granted by the 
Ramos court on behalf of the class even though the court noted 
that the order would require "disbursing public funds in such 
interim with little possibility of recovery in the event the 
state ultimately wins." Ramos v. Health & Social Services 
Board of State of Wis., 276 F. Supp. 474 (E.D. Wis. 1967). 
Similar relief for the class of potential public assistance
recipients has been granted in Johnson v. Robinson, ____ F.
Supp. ____ (Civil Action No. 67-C-1883, N.D. 111., December
29, 1967) and Mantell v. Dandridge, ____ F. Supp. ____ (Civil
Action No. 18792, D.Md., December 4, 1967).

The analogy of these cases to the instant one is 
clear. in each, a substantial constitutional question had 
been raised. In each, preliminary relief was granted to the 
class on the basis of a showing of irreparable injury to the 
one individual or a small number of individuals. There was 
no need for the plaintiffs in those cases to demonstrate wide­
spread irreparable injury; it being assumed that since the 
actions of the welfare department apply equally to all recipi­
ents and since such action resulted in actual irreparable 
injury to named individuals who represented the class, a proper 
case for preliminary relief had been made. Furthermore, the 
relief was granted in the face of the fact that the interim 
order would require the state to dispurse funds without 
chance of recovery.

Finally, the court should be aware that plaintiffs



42

attempted to ascertain the names of recently terminated OAS 
recipients and/or terminated recipients who are awaiting fair 
hearing decisions. Plaintiffs were frustrated in this attempt, 
both at the state and county level, by the refusal of defend­
ants 1 counsel to make available such information in their 
possession on the grounds of confidentiality.

Since no facts are at issue, the preliminary injunc­
tion should properly be granted at the time of trial on the 
basis of the papers and evidence before the court. The con­
tinued infringement of plaintiffs' constitutional rights 
should be immediately enjoined to prevent further injury.

Conclusion
For the reasons set forth above, the plaintiffs 

respectfully request that the relief requested be granted, 
together with such other and further relief as the court 
deems just and proper under the circumstances.

Dated: March 15, 1968.

Respectfully submitted,
'1

Peter E„ Sitkin



APPENDIX
6000

Part IV______________________ Eligibility, Assistance, and Services
~36o o-6999" .. Fair Hearings 7/9/5$

Handbook of Public Assistance Administration

6000. Fair Hearings 
6l00. Provisions of the Act

Sections 2(a)(k), to2(a)(k), 1002(a) (1*), 1402(a)(4), and l602(a)(k) 
read as follows:
"A State plan . . . must . . . provide for granting an opportunity 
for a fair hearing before the State agency to any individual whose 
claim for (aid or assistance under the plan) is denied or is not 
acted upon with reasonable promptness
Section 406(b)(2) authorizes Federal participation in protective payments "but only with respect to a State whose State plan 
approved under section iK>2 includes provision for . . .
"(F) opportunity for a fair hearing before the State agency on 
the determination (of need for protective payment) for any 
individual with respect to whom it Is made

6200. Requirements for State Plans
A State plan under titles I, IV, X, XIV, and XVI must provide:
1. For specific designation of responsibility within the agency 

for conduct of hearings,
2. For rendering decisions that are binding on the State and 

local agency, and
3 . For establishing hearing procedures to assure that:

a. Every claimant may demand and obtain a hearing before the 
State agency in relation to any agency action or failure 
to act on his claim with reasonable promptness as defined 
in the State plan. (See IV-A-2331, item 1, and IV-2232, 
items 2 and 3.)

b. Every claimant is informed in writing at the time of ap­
plication and at the time of any agency action affecting his claim, of his right to a fair hearing and of the method 
by which he may obtain a hearing.

H.T. No. 56



o200-p.2

Part iv_________ _____________ Eligibility, Assistance, and Services
6006-6999 Fair‘Hearings____________  7/9/65

Handbook of Public Assistance Administration

6200. Requirements for State Plans (Continued)
4c. Such hearing procedures will be issued by the State, clearly stated and properly publicized, for the guidance 

of all concerned.
d. The hearing will be conducted by an impartial official 

(or officials) of the State agency.
e. The hearing will be conducted at a time, date, and place 

convenient to the claimant, and the claimant will be 
given, in writing, adequate preliminary notice, information 
about the hearing procedure necessary for his effective 
preparation for the hearing, information that he has the right to be represented by legal counsel of his own selec­
tion, and, if the State plan provides for fees to legal 
counsel who represents the claimant in connection with
the hearing, information concerning the payment of such 
fees.

f. Prompt, definitive, and final administrative action will 
be taken on every request for a hearing, including a time 
limit between the request for a fair hearing and the 
rendering of the decision.

g. The claimant has the opportunity (l) to examine all docu­
ments and records used at the hearing; (2) at his option, 
to present his case himself or with the aid of others, 
including counsel; (3) to bring witnesses; (U) to estab­
lish all pertinent facts and circumstances; (5) to advance any arguments without undue interference; and 
(6) to question or refute any testimony or evidence.

h. The verbatim transcript of testimony and exhibits, or an 
official report containing the substance of what tran­
spired at the hearing, together with all papers and 
requests filed in the proceedinĝ  and the hearing officer's 
or panel's recommendation, constitute the exclusive record 
for decision and are available to the claimant at any 
reasonable time.

H.T. No. 56



6200-p.3

Part IV____________________________ Eligibility, Assistance, and Services
6000-6999 Fair Hearings 7/9/65

Handbook of Public Assistance Administration

6200. Requirements for State Plans (Continued)

i. A prompt, definitive, and final written administrative
decision will be rendered in the name of the State agency. 
The claimant shall be notified promptly in writing, of 
the decision and, to the extent available to him, of his 
right to judicial review.

(For specific application, of requirement relating to protective 
payments in AFDO, see IV-5235*3> item 8 .)

6300. Interpretation of Requirements

6310. Purpose

The primary purpose of the fair hearing provision, in each of the 
public assistance titles, is to provide an opportunity for any 
dissatisfied applicant for or recipient of public assistance, to 
assert his claim and to secure, in an administrative proceeding, 
equity of treatment in relation to the State's assistance laws 
and standards. To carry out this purpose requires that the State 
establish policies and procedures to assure that the hearing is in 
fact available to every claimant.

6320. Authority for Decision (See IV-6200, items 1 and 2)

The purpose of the requirement of specific designation of a 
decision making authority is to assure that requests for a hearing 
will receive prompt and official consideration. The designated 
decision making authority may he the highest executive officer of 
the State agency, a panel of agency officials or a hearing officer 
appointed for that purpose, who has not taken part in the action 
under consideration. (See IV-6333*) 'Shis authority is responsible 
for rendering a final definitive administrative decision, which is 
binding on the State agency and local agencies, on all issues that 
have been made the subject of a hearing.

6330. Hearing Procedures (See IV-6200, Item 3)

The procedures which follow, governing the conduct of the hearing 
process, are designed to assure the right of every claimant to 
demand and obtain a hearing on any action, or failure to ant 
with reasonable promptness, on his claim for assistance.

H.T. Jfcv 56



6331

Pfirt IV
6000-6999

. ........... Eligibility, Assistance,____________ Fair Hearings______________

Ihandbook of Public Assistance Admin1strati a 4
and Services

6331. Right to a Hearing (See IV-6200, item 3a)
The claimant's freedom to request a hearing, whenever he believes 
that proper consideration has not been given to all the circum- 
stnaces surrounding his claim, is a fundamental right and is not to lx; limited or interfered with in any way. It is essential 
that the claimant be given a reasonable period in which to appeal 
an agency action. A request for a hearing is defined as any clear 
expression (oral or written, by letter or on special forms) by 
the claimant (or person acting for him, such as his legal repre­
sentative, relative or friend) to the effect that he wants an 
opportunity to present his case to a higher authority. Agency 
action or failure to act, which gives rise to a right to a hearing, 
includes: agency decisions regarding eligibility for assistance,
whether on initial determination or subsequent determination; agency decisions regarding amount of assistance (including a change in 
payments), whether money payments or vendor payments; agency 
decisions relating to the manner or form of payment, (e.g., a 
decision to make a restricted payment, or a protective payment, 
even though made in accordance with State policy, and even though 
no Federal financial participation is claimed) and conditions of 
payment, including work requirements; denial of opportunity to 
make application or reapplication for assistance; undue delay in reaching a decision on eligibility or in making a payment; 
refusal to consider a request for or undue delay in making an 
adjustment in payment; and suspension or discontinuance of assis­
tance in whole or in part. The claimant may question the agency's 
interpretation of the law, and the reasonableness and equitable- 
ness of the policies promulgated under the law, if he is aggrieved by their application to his situation.
Effective complaint and adjustment procedures, by means of which 
corrective action may be easily requested and readily obtained 
without need for hearing, are important. The local office may 
amend or reverse its decision at any time, but after a hearing 
has been requested, local adjustment procedures cannot be allowed to Interfere in any way with the hearing process.

*
Only the claimant can withdraw his request for a hearing. In such 
case, a written withdrawal will be obtained and a report of the circumstances leading to it will be made to the State agency by the local agency or person receiving the withdrawal.

H.T. No. 56



6331-P.2

Handbook of Public Assistance Administration
Part IV
oOdO-6999 Pair HearingsEligibility, Assistance, and Services

T S M .

6331- Right to a Hearing (Continued)
Since under the Federal act and the State plan, every aggrieved 
claimant is entitled to the opportunity for a hearing, the agency 
may not deny or dismiss a request for a hearing except where it 
has been abandoned by the claimant. A request for a hearing may 
be considered abandoned if neither the claimant nor his represent­
ative appears at the- time and place agreed upon for the hearing, 
and if, within a reasonable time after the mailing of an inquiry 
as to whether he wishes any further action taken on his request 
for a hearing, no reply is received by either the local or State agency.

6332. Informing the Applicant or Recipient of His Right to a Hearing(See IV-6200, item 3b) ---------
Obviously, applicants and recipients can make use of their right 
to a hearing only if they are informed of its availability and 
the methods by which it may be obtained. The requirement for 
written notification may be met by including the informtion on 
the application form and other notification forms routinely used 
by the agency which go to applicants and recipients. The agency 
may also include an explanation of the right to a hearing in simple, non-legal terms in explanatory pamphlets, which are 
distributed by the agency. An oral explanation of the policy on 
hearings, at intake and at the time of a change in eligibility or 
amount of the payment, will assist the individual in understanding 
his rights to a hearing and of the way in which he can make vise of it.

6333. Publication of Hearing Procedures (See IV-6200, item 3c)
The hearing procedures will be issued in the form of rules or 
regulations or in some other form in which they will be publicized for the guidance of all concerned. Using the form of rules or 
regulations would emphasize the importance of the procedures.
It would contribute to the fairness of the'hearing procedure, and 
emphasize that there is "due process" in program administration affecting the "right" to public assistance.

II.T. No. 56



oS Sil

Part IV______________________Eligibility, Assistance, and Services
(jOOO-69S‘9 Fair Hearings _____  7/9/6$

Handbook of Assistance Administration

633U. Impartial Hearing Officer (See IV-6200, item 3d)
While the decision making authority is responsible for rendering 
a final decision on the subject at issue, responsibility for the 
conduct of the hearings my be delegated to a hearing official, panel or other responsible agency officials. Impartial official 
means that the hearing officer has not been involved in any way 
with the action in question. Any person who has advised or given consultation on the question at issue is disqualified as the hear­
ing officer on that case. For example, a field supervisor who has 
advised the local agency in the handling of the case would be 
disqualified.

6335. Notice to the Claimant (See rv-6200, item 3e)
It is essentia], tliat the claimant be given preliminary Witten confirmation of the date, time, and place the hearing is to be held, 
which includes an explanation of the hearing process and of the 
procedures to be followed at the hearing, so that he will have suf­
ficient time and a clear understanding of what he needs to do to 
prepare for an effective presentation of his case and to secure 
witnesses or legal counsel, if he desires. This would include 
information about the fair hearing as an informal administrative 
procedure, in which a dissatisfied claimant for assistance or his 
representative may present his grievance with the help of witnesses 
to show why action or inaction in his case should be corrected by 
the State agency. It would also Include information about payment 
of the costs of legal counsel to represent him in connection with 
the hearing, if the plan provides for the payment of such costs.
It is essential that the convenience of the claimant be considered 
in setting the date, time, and place for the hearing. A mutually 
convenient time and place may be determined through an interview 
with the claimant, either in the office or at his home.
The agency has not discharged its responsibility for granting an 
opportunity for a hearing, unless It has /taken all steps necessary 
to enable a claimant who requested a hearing either to attend the 
hearing in person or to be represented by a p>erson of his own 
choosing. If the hearing is to be held at a considerable distance 
from the locality of the claimant's residence, it may be necessary to provide for the transportation of the claimant and his witnesses 
to the place of the hearing.

H.T. No. 56



* 6336

Handboo!: of Public Assistance Administration
Part IVi >000

_____Eligibility,
Fair Hearings____

.Assistance, and Services
1 M H

*;>3j6. irompt Action (See IV-6200, item 3f)
The requirement for prompt, definitive, and final administrative 
action means that all requests for a hearing are to receive imme­diate attention and be carried through all the steps necessary to 
completion.
A definitive over-all time limit for the period Detween the date 
of the request for the hearing and the date of execution of the 
decision shall be established by the State agency. This will 
serve as one of the safeguards of prompt, administrative action 
on every request for a hearing. Detailed controls for individual 
steps in the hearing process, such as: time limits for accepting,
forwarding, and aclnowledging a request for a hearing; notice to 
the claimant; and date of the hearing will facilitate proper 
administration of the hearing process.
The requirement of "definitive and final administrative action" 
is not met if the State agency dismisses such requests for any 
reason other than withdrawal or abandonment of the request by 
the claimant.

6337. Claimant Participation in the Hearing (See IV-6200, item 3g)
The basic concept of the fair hearing is that the person seek­
ing a hearing has the opportunity to examine all evidence used, 
by the agency, in making a decision on his claim. Therefore, non­
record or confidential information which the claimant does not 
have an opportunity to hear or see may not be made a part of the 
hearing record or used in making a decision on the case. For 
example, where the agency action at issue is based on medical 
information, such information would need to be available at the 
hearing. He or his representative may examine material that will 
be introduced os evidence prior to the hearing, as well as daring 
the hearing itself. If any additional material is to be made a 
part of the hearing record, this too will be made available to 
the claimant. *
The claimant's right to a hearing includes the privilege of presenting his case in any way he desires . Some 'fill wish to tell 
their story in their own way, some will desire to have a relative or friend present the evidence for them, and still-others will

H.T. No. 56



6339-P .2o

Handbook of Public Assistance Administration
Part IV &XX)-b999 Eligibility, Assistance, and ServicesFair Hearings 179755

6339* Decision arid Notification (Continued)
consideration is not a substitute for "definitive and final 
administrative action." The State agency is responsible for 
assuring that the decision is carried out. Various methods, such 
as a report by the local unit to the State agency of action taken 
to carry out the hearing decision or follow up by State office staff may be used.
The claimant shall be notified in writing of the decision and of 
the reasons that formed the basis of the decision. The claimant 
shall be advised that he may examine the hearing record (if he 
wishes), and that it may be made available to him in the local 
office, where a copy of the hearing record will be on file.
The requirement that the claimant be notified of any rights he 
may have to judicial review'- is made with the recognition that 
public assistance applicants and recipients frequently do not know of their legal rights .
In some States, the right of judicial review may be prescribed by 
statute specifically authorizing review of the agency decision on 
the basis of the record of administrative proceedings. In other States, even in the absence of statutory provisions, a claimant 
may be able to invoke the remedy of judicial review on a showing 
that the agency action was "unreasonable, arbitrary, or capricious. The content of the notice would depend upon the kind of remedy 
available in the State. (For specific application to (l) Protec­
tive Payments in AFDC, see IV-5235.26, and (2) Unemployment of a Parent in AFDC, see lV-3h2*+.2-p .3 . )

6*100- Federal Financial Participation
Federal financial participation is available in:
1. Payments made to carry out hearing decisions, or to carry 

out a decision to take corrective action after a request for 
a hearing but prior to the hearing itself, as current pay­
ments for all or any part of the period beginning two months 
prior to the month in which the request for a hearing was made, 
provided the amounts paid are shown to have been Improperly 
withheld or denied in such months by administrative action.

H.T. No, 56