Westberry v. Fisher Plaintiffs' Brief

    UNITED STATES DISTRICT COURT 

DISTRICT OP MAINE 
SOUTHERN DIVISION

RICHARD A. WESTBERRY, ET. ALS.

Plaintiffs
CIVIL ACTION 
No. 10-80

DEAN FISHER, M. D . , ET ALS.
Defendants

PLAINTIFFS' BRIEF IN SUPPORT OF THEIR CLAIM 
FOR"BENEFITS' ILLEGALLY WITHHELD AND FOR DAMAGES

Donald F. Fontaine
156 Danforth Street 
Portland, Maine 0*1101

William L. Robinson
10 Columbus Circle 
New York, New York 10019

Attornevs for Plaintiffs



UNITED STATES DISTRICT COURT
DISTRICT OP MAINE 
SOUTHERN DIVISION

RICHARD A. WESTBERRY, ET. ALS.

Plaintiffs
CIVIL ACTION 
No. 10-80

DEAN FISHER, M. D . , ET ALS.
Defendants

PLAINTIFFS' BRIEF IN SUPPORT OF THEIR CLAIM 
FOR BENEFITS ILLEGALLY WITHHELD AND FOR DAMAGES

Donald F. Fontaine
156 Danforth Street 
Portland, Maine 0*1101

William L. Robinson
10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs



TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES...................................... ill

ARGUMENT....................................................... 1

I INTRODUCTION ................................... 1
II DEFENDANTS MUST RELEASE BENEFITS

WRONGFULLY WITHHELD...............  2
a) Federal and State Administrative

Regulations Require payment of 
benefits wrongfully withheld.............2

b) Federal and State Decisions support
plaintiff’s claim to benefits 
wrongfully withheld....................... 6

III 4 U.S.C. §1983 REQUIRES DEFENDANTS TO
RECOMPENSE PLAINTIFFS FOR INCOME LOST 
C O M P LICATION AND THREATENED APPLICATION
OF T H E ~ I X I M U M  BUDGET REGULATIONS.......... .9

IV PERSONAL LIABILITY OF THE DEFENDANTS.......11

V CONCLUSION .....................................16

ii



T A B L E  O F  A U T H O R I T I E S

CASES Page

Board of Social Welfare v. Los Angeles County,
27 Cal. 2d 90, 162 P. 2d 630 (1945). ,. . . . . ,............  7- 8

Board of Trustees of Arkansas A & M College v.
Davis, 396 FT 2d 730 (3th Cir. 1968)....................1 2 , 13
Chambers v. Henderson County Board of Education,
364 F. 2d 139 (4th Cir. 1966)............................ 10
Department of Employment v. United States,
385 U.S. 355 (1966)... ........... . .......................  7
Ex parte Young, 209 U.S. 123 (1907).................... 12

Ferguson v. N o e , 364 S.W. 2d 650 (Xy. 1963)............  7
Gregoire v. Biddle, 177 F. 2d 579 (2nd Cir.
1949), cert, d e n . , 339 U.S. 949 (1550)..................11
Hill v. Franklin Countv Board of Education,
Nos. 17647 , 17640 ■ and“17649 (6th Cir. decided 
February 20 , 1968)................. . ...................10
Hogue v. Commissioner of Economic Security,
407 S.U. 2d 437 (Ky. 1366)............... ................  7
Johnson v. Branch, 364 F. 2d 177 (4th Cir. 1966)......  9, 10

Lane v. Wilson, 307 U. S. 268 (1939)...................15
Michaud v. City of Bangor, 159 Me. 491, 196
A. 2d 1C6 (1963) ... ...................... ................. 15
Monroe v . Pape, 365 U.S. 107 (1960)..................... 11
Norton v. .IcShane, 332 F. 2d 855 (5th Cir. 1964),
Cert, den.  ̂ 330 U.S. 981 (1965)..........................11
Pierson v. Ray, 386 U.S. 550 (1967)..................... 13, 14
Public Utilities Commission of Ohio v. United
States Fuel Gas Co.' 317 U.S. 456 (1943)...............  4
Rolfe v. County Board of Education, No. 17498
(6th Cir. decided February 19, 1968) . ................. ..10

iii



Sherbert v . Verner, 374 U.S. 390 (1963)..................  7
Smith v. Board of Education of Horrilton
County^ 365 F . 23 77 0 (8th cir . 1966) . . ........ -........ 10
Thompson v . Shapiro, 270 F. Supp 331 (D.C. Conn.
1967), prob. juris. Noted, 19 L.Ed. 820 (1968).......... 6 , 9
Thorpe v. Housing Authority, ___ U.S.___ , 37 U.S.L.W.
4068 (1969) . .......................... -........ ......... * • • 4 f 5

United States v. Alabama, 362 U.S. 602 (1959)........... 4

United States v. Jefferson, 372 F „ 2d 836 (5th 
Cir. 1966), aff'd en banc, 380 F. 2d. 385 (5th Cir.
1967)  .............. .......................... 6

United States v. Obermeier, 186 F. 2d 243 (2nd
C i r . 1950) , cert. d e n .~ 3T0 U.S. 951 (1951).............  6

('?all v. Stanley County Board of Education,
378 F . 2d 275 (4th Cir. 1967)... ..........................  9, 10

UNITED STATES CONSTITUTION

Eleventh Amendment ...... ...................... 12

STATUTES

42 U.S.C. § 1983 ......................... ...................  2, 9
11, 13

ME. R E V . STAT. ANN., tit.. 22, § 3351 (1964).............14

FEDERAL HANDBOOK OF PUBLIC ASSISTANCE 

§ 6200 (a) (k) ,
§ 6500 (a)............................ ........... .........  3 ' 4

MAINE PUBLIC ASSISTANCE PAYMENTS MANUAL

ChaDter II, Section C, pace 5 ....... ......................  3, 4
15

TEXTS AND TREATISES

Emerson, Haber and Dorsen, Political and Civil
Rights in the United States (3rd ed. 196?) Vol. II.... 9

iv



Jennings, Tort Liability of Administrative
Officers, 21 Minn. L"I Rev „ 263 (1937).......................15

Prosser, Torts (2nd ed . 1555)................ ............... 15

v



UNITED STATES DISTRICT COURT
DISTRICT OF MAINE 
SOUTHERN DIVISION

RICHARD A. TTESTBEP.RY, ET ALS . ) CIVIL ACTION
)

Plaintiffs ) No. 10-30
)

V o )
)

DEAN FISHER. M. D „, ET AMS. )
)

Defendants )

PLAINTIFFS' BRIEF IN SUPPORT OF THEIR CLAIM 
FOP BENEFITS"'!:LLEGALLY VITIiHELr AND FOR DAMAGES

ARGUMENT

I . Introduction
This is a class action pursuant to F. R. Civ. P.

23 (b) (2 ) for a declaratory judgement that the maximum
grant' and maximum budget regulations contained in the 
Maine Public Assistance Policy Manua l • Chapter III, Sec­
tion A, pages 2, 4 and 5 as more particularly described 
in the amended complaint, violate the Eoual Protection, 
Due Process and Privileges and Immunities Clauses of the 
Fourteenth Amendment to the United States Constitution, 

certain provisions of Federal Civil Rights and Social Se-



-2-

curity Acts,, and certain provisions of the Maine welfare 

statutes. Plaintiffs also seek injunctive relief. These 
issues have been fully briefed and were araued before this 
court on October 25, 1963.

This brief considers the question of damages. Cer­
tain federal and state regulations and certain cases re­
quire the defendant Department of Health and Welfare to 
release moneys unconstitutionally withheld. (Point II).
A federal statute, 42 U.S.C. S 1903, in addition, requires 
the individual defendants to compensate plaintiffs in the 
same amount and for the damages sustained as a result of 

the illegal action. (Point III). Neither the Eleventh 
Amendment to the United States Constitution, nor the doc­
trine of sovereign immunity, bars this relief against the 
defendants. ITor are the individual defendants personally 
immune u.naer re : nt case law. (Point IV) . The conclusion 

is that this court may order the defendants to compute 
damages with each member of the class in his individual 
circumstances.

II. Defendants Must Release Benefits T’ronafullv withheld — ------------------------------ ——-——— ------------- - -
a) Tederal and State administrative regulations reauire 
paymentcof benefits wrongfully withheld.

During the pendency of this action, administrative 
regulations by the. United States Department of Health, E d u ­
cation and Welfare and the Maine Department of Welfare



-3

have become effective. These regulations provide for
fair hearinas ana retroactive payments of benefits

wrongfully denied. The HEW regulation is contained in
the Federal Handbook of Public Assistance and is attached

as Appendix A. It provides

f 6200 Requirements for State Plans
A state plan for . . . AFDC . . . 
must provide that
(a) The State aaency will be r e ­
sponsible for fulfillment of fair 
hearinas provisions, and shall 
specify the hearing authority.
(k) Then the hearing decision is 
favorable to the claimant, or when 
the agency decides in favor of the 
claimant prior to the hearing, the 
aaency will make the correct pay­
ments retroactively to the date 
the incorrect action was taken.
§ 6500 Fed e r a l Financial Participation
Federal financial participation is 
available in
(a) Payments made to carry out h e a r ­
ing decisions,- or to take corrective 
action prior to the hearing, includ­
ing corrected payments retroactively 
to the date the incorrect administra­
tive action was taken.

Handbook Transmittal Mo. 140, February 
2, I960. (Effective date.- July 1, 1968)

The Maine Department of Welfare Administrative reau- 
lations providing for fair hearings and retroactive pay­
ments of benefits wrongfully witheId nrovide



-4-

If the agency's original action is 
reversed or in any other way nodified’ 
causing a decision favorable to the 
claimant, the agency will take im­
mediate steps to insure that within 
the CO day period that corrected pay­
ments are made retroactively to the 
date the incorrect action was taken 
or to the date of application, which 
ever was later. J. -aine Public As ­
sistance Payments Manual C h „ I ,
Section C, p. 5 fp.ev. 7/1/63) .

Numerous decisions of the United States Supreme Court 
hold that a court must apply the law in effect at the 

tine it renders decision. Thorpe v. Housing Authority,
Ho. 20, decided January 13, I960 United States v. Ala­
bama , 362 U.S. 602 (1959) Public Utilities Commission 
of Ohio v. United States Fuel has C o ., 317 U.S. 456 (1943) 
In Thorpe the court held that the Housing Authority for 
the City of Durham was obligated to follow eviction pro 
cedures contained in a regulation enacted by the Depart­

ment of Housing and Urban Development while the case was 
on appeal. The court wrote

Chief Justice Marshall explained the 
rule over 150 years ago as follows:

[I]f subsequent to the judge­
ment and before the decision 
of the appellate court, a lav; 
intervenes and positively 
changes the rule which gov­
erns, the law must be obeyed 
or its obligation denied.
If the lav; be constitution­
al, . . .1 know of no court
which can contest its obli­
gation. It is true that in 
mere private cases between



-5-

inclivicluals, a court will and 
ought to struggle hard against 
a construction which will, by 
a retrospective operation, af­
fect the rights of parties, 
but in great national con­
cerns . . . the court must d e ­
cide according to existing 
lavs, and if it be necessary 
to set aside a judgement, 
rightful when rendered but 
which cannot be affirmed but 
in violation of law, the 
judgement must be set aside.

This same reasoning has been applied 
where the change was constitutional, 
statutory, and judicial. Surely it ap­
plies with equal force where the change 
is made by an administrative acrencv act­
ing pursuant to legislative authorization. 
L v7. 406S (1965), footnotes omitted.

This court- which has not yet rendered a decision 
in the instant case is a fortior required to give effect 
to the HE '/7 and state regulations and order defendants to 
grant plaintiffs corrected payments to the date the in­

correct administrative action vas taken.
Even if the court rejects plaintiffs argument that 

it is bound to give effect to the federal and state regula­
tions, the regulations lend strong persuasive support for 
the position that the court should award plaintiffs retro­

active payments of benefits wrongfully withheld back to 
the date the incorrect action was taken. In these rerrula 

tionsf the state and federal agencies responsible for ad­
ministering the AFDC program recognize the recipient's



-G-

right to receive benefits wrongfully withheld retroac­

tively to the date the incorrect action was taken. Ad­
ministrative reaulations are presumed valid and the court 

should give areat weight to the regulations of the 
agencies responsible for administering the program, in 
question. United States v. Obermeier, 13 6 F . 2d. 243 (2nd 

Cir. 1950) cert. den. 340 U.S. 951 (1951) United States

v. Jefferson, 372 F.2d. 336 (5th Cir. 1966) , a f f ‘d en banc,

330 F.2d. 395 (5th Cir. 1967). cert. den. sub. n o n .,

Caddo Parish School Board v. United States, 339 U.S. 340 
(1967). Plaintiffs submit that the court should adopt 
the rationale of the federal and state regulations and or 
der retroactive payment of benefits wrongfully withheld 
back to the date the incorrect actions were taken pursuant 
to the maximum budget and maximum grant regulations.

(b) Federal and State decisions support plaintiffs' claim 

to benefits vronafully withheld.
Decisions of federal courts support plaintiffs' 

claim to retroactive payments for benefits wrongfully with­

held .
In Thonpson v. Uhap i r o , 27 0 F. Supp 331 (D.C. Conn.) 

prob. juris, noted, 19 L.ed 2d 320 (1963). the case most 
similar to the case at bar, a three-judge district court 
declared unconstitutional the Connecticut statutes reguir-



-7~

ing a fartilv to reside in the state for one full year 

prior to receipt of ADC payments. Significantly, the 
court also awarded plaintiff retroactive payment of moneys 
unconstitutionally withheld because of the unconstitutional 

statutes. See Sherbert v . V e r n e r • 374 U.S. 398 (1S63) c f . 
Department of Emplovr.ent v. United States, 38 5 U.S. 3 55X 7 7
(1966) .

Decisions by the highest courts in several states 

also support plaintiffs ; prayer for retroactive payments 
back to the date the incorrect action was taken. board of 
Social T7elfara v. L03 Angeles County, 20 Cal. 2d 90, 162 

p „ 2d 630 (1945) Perguson v. doe 3C4 S.T’. 2d 650 (Kv. 1963) 
Hogue v. Commissioner of Economic Security, 407 S.I7. 2d 437 

(Ky. 1965).
In Board of Social welfare v. Los Angeles County, 

supra, the Supreme Court of California considered several 
cases involving a claim for retroactive payments and issued 
a peremptory writ of mandate ordering the county board to 
make assistance payments retroactive to the date the reci­
pients were erroneously denied public assistance. In ana­

lysing one of the cases the court wrote

1./ Liability to make payment of moneys unconstitutionally 
withheld may also be based on 42 U.E.C. § 1983. See Point 
III of this Brief.



-8

In the case now before us we are of 
the view that the provisions for appeal . 
to the State Social Welfare Board and 
for the payments, if awarded, to com­
mence from the date the applicant was 
first entitled thereto' likewise sub­
serve a clear public purpose by se­
curing to those entitled to aid the 
full payment thereof from the date 
*** [they were] first entitled there­
to regardless of errors or delays 
by local authorities. It was the 
mandatory duty of the county to fur 
nish aid according to the plan there­
for which is laid down bv the ap­
plicable provisions of the v’elfare 
and Institutions Code [citations 
omitted]. The obligation to may 
became a debt due from the county!to 
the applicant as of the date the lat­
ter was first entitled to receive 
the aid [citations omitted]. The 
bare fact that an applicant has by 
one means or another managed to ward 
off starvation pending receipt of the 
pavments to which he was previously 
entitled provides no sufficient ex­
cuse for a county to refuse to make 
such payments. To hold otherv/ise 
wou l d , as suggested by petitioner 
herin, pro/ide a money-saving device 
for tiie counties at the expense of 
these of our citizenry least able to 
bear the burden thereof.
165 p. 2d at 633.

T h u s , federal and state decisional lav; supports 

plaintiffs' claim for benefits wrongfully denied.
Plaintiffs submit that this court should adopt the 

rationale of’ other federal courts and of the Supreme Courts 
of California and Kentucky and exercise its broad equity 
powers to order the Commissioner of Welfare to award retro­
active payment of the benefits wrongfully withheld pursuant 

to the maximum grant and maximum budgeted requirements regu­

lations .



-9-

III. 42 U.S.C. § 1933 Requires Defendants to Recompense
Plaintiffs for Income Lost by Application and 
Threatened Application of the Ilaximun Budget P.egu- 
latxons.

The purpose of § 1983 is to put the injured party 
in the position they would have held but for the constitu­
tional action of persons acting under color of state lav;.
§ 1983 provides that:

Every person , who, under color of any 
statute, ordinance, custom or usage of 
any State subjects, or causes to be 
subjected, any citizen of the United 
States or other person within the 
jurisdiction thereof to the depriva­
tion of any privileges or immunities 
secured by the Constitution or lav;, 
shall be liable to the party .injured 
in an action at law, suit in equity, < : 
or other proper proceeding for re­
dress. (R.S. 1979 Force Act of 1871,
17 Stat. 13.) Emphasis added

Federal courts have frequently awarded money damages
to oersons deprived of thier privilecres and immunities in

£_• /
violation of § 1933. In Johnson v. Branch, 364 F. 2d 177 

(4th Cir, 1966), the court, finding that the school board 
had refused to renew the contract of a Negro teacher because 

of her civil rights activities, remanded the case directing 
the district court to order the board to renev; her contract 
and determine her damages. In Uall v. Stanley County Board

2./ Thompson v . Shapiro, surra.: See generally, Emerson,
Haber and Dorsen, Political and Civil Eights in the United 
States, (3rd Ed. 1367, Little, Brown and"Co., Poston)
Vol. II, pp. 1447-1454.



“10-

of Education,, 378 F.2cl 275 (4tii C i r . 1557), the court found 

that Mrs. Mali, a Negro teacher, was refused employment by 
the Stanley County Board of Education because of her race. 
The court ordered the board to put her bach on the roster 
of teaching applicants and that she be given objective con­
sideration for employment and further ordered the board to 
pay her damages for her loss of earnings;

Mrs. Nall managed to secure employ­
ment elsewhere for the school year 
1965-66. Proper damage elements 
will include salary differences, if 
any, and moving expenses to her new 
residence. If she should be re-em-- 
ployed in the Stanley Countv system 
for the school year 1967-60, she 
should also be awarded the reasonable 
expense of moving back to Stanley 
County. 37 8 F2d at 27 3 3_./.

In the instant case, plaintiff, June Martin, qualified for 
and willing to accept work as a nurse's aide which was a • 

vailable in the community, was prevented from continuing 
her employment by virtue of the enforcement of the maximum 
budgeted requirements regulation just as the Negro teachers 
in Johnson v. Branch, supra. and Wall v, Stanley, supra, 
were prevented from working by the actions of the school 

board. (Defendants5 Answer, Para. 12). Plaintiffs --Submit 

that the court should similarly require the Commissioner of 
Welfare to recompense her for her lost earnings.

3 / Additional cases awarding damages under £ 1583 to Negro 
teachers refused employment because of their race a r c • Hill v. 
Franklin County Board of Education Nos. 17647, 1764 3 and 
1764 9 (6th Cir. decided Feb. 20. 1968) Folfe- v . Countv Board 
of Education, No. 17456 (6th Cir. decided "Feb"." 19, i960) •“  —  
Smith v. Board of Education of Morrilton County, 3G5 F.2d. 770 
(8th Cir.. 1966)° Chambers v. Henderson County Board of E d u ­
cation, 364 F. 2d 1C? (4th C i r . 1966) .



11

Other members of the class have also suffered in­

jury as a result of the challenged regulations. For ex­

ample, some persons, precluded from receiving AFDC 
assistance solely because of the maximum budget regulation? 
are unable to receive medicaid and must obtain loans or for­

go other necessities to obtain medicare and meciical car^. 

These injuries and the resulting damages will, o£ course? 
vary for each individual member of the class, however, 
the defendants are personally liable for such damages under 

§ 1933 . See PointjV of this brief.

IV. Personal Liability of the Defendants:

Once a cause of action has been proved under 4 2 U.S.C. 

§ 1933 - Congress has plainly authorized damages against the 
defendants as well as injunctive relief. Persons are 
liable to the partv injured in an action at law. 42 U.S.C. 
c 1983„ This section does not include federal offices. 

Gregoire v. Biddle? 177 F„ 2d 579 (2nd Cir. 1949)... cert. d e n . 
339 u.S. 942 (1350) Horton v. lie Shan e ,, 332 U.S. 931 (1365) . 
But it does include the actions of the state officers whether 

or not their acts are authorized by state lav7. Monroe v . 
Pape, 365 U.S. 107, 184-137 (1960). It is sufficient that 

the allegedly illegal act was made possible only because 
the wrong.doer was clothed with the authority of state law.

The acts of the defendants in the instant case are 

not immunized from liabilities because tney were exercising



-12-

the sovereign power of the state, since the state cannot 
afford one immunity to violate the United States Consti­
tution, Ex parte Young , 20? U.S. 123 (1907). Board of 
Trustees of Arkansas A £ ?■ College v. Davis, 396 F. 2d 730 

(3th Cir. 1963). The latter case was an action by a former 
faculty member against a beard of trustees of a state college 
for damages following the termination of plaintiff;s status 

as a faculty member. A three-circuit judge court held that 
the suit was not barred by the Eleventh Amendment. It 
wrote 1

Plaintiff does not dispute that Arkan­
sas A €i ] 1 College is a state agency.
He- stands on the proposition, how­
ever, with which we agree, that sov­
ereign immunity does not extend to 
state or federal officials who act 
beyond their authority or in viola­
tion of the United States Constitu­
tion .
The foundation case is Ex parte 
Young, 209 U.S. 123, S. Ct. 441, 52 
D.Ed. 714 (1903), where the Supremo 
Court held that a suit against the 
Attorney General of Minnesota to en­
join the enforcement of an unconsti­
tutional state statute did not violate 
the prohibition of the Eleventh Amend­
ment. In rejecting the claim of 
state immunity the court announced 
this basic principle,

The act to be enforced is alleged 
to be unconstitutional, and if it 
be so, the use of the name of the 
state to enforce an unconstitution­
al act to the injury of complain­
ants is a proceeding without the 
authority of and one which does 
not affect the state in its



-13-

sovereign or governmental 
capacity. It is simply an i l ­
legal act upon the part of a 
state official in attempting, 
by the use of the name of the 
state, to enforce a legislative 
enactment which is void be­
cause it is unconstitutional.
If the act which the state at­
torney general seeks to en­
force be a violation of the 
Federal Constitution, the of­
ficer, in proceeding under such 
enactment, comes into conflict 
with the superior authority of 
that Constitution, and he is 
in that case stripped of his 
official or representative 
character and is subjected in 
his person to the consequencas 
of his individual conduct. The 
state has no power to impart to 
him any immunity from respon­
sibility to the supreme 
authority of the United States. 
396 F. 2d 730, 732 (8th Cir. 
1S68), footnotes omitted.

The general rule, therefore, of 42 U.S.C. § 1983 is 
personal liability. The exception is immunity. Recently, 
the United States Supreme Court in Pierson v. R a y , 386 U.S. 
550 (1867) ha3.d a Mississippi police officer immune from 
personal tort liability for false arrest where he has acted 
with probable cause and good faith under an act he reason­
ably believed to be constitutional. The court w r ote:

A policeman's lot is not so unhappy 
that he must choose between being 
charged with dereliction of duty if 
he does not arrest when he has pro­
bable cause, and being mulcted in 
damages if he d o e s . Although the



-14-

matter is not entirely free from doubt 
the same consideration would seen to 
require excusing him from liability 
for acting under a statute that he 
reasonably believed to be valid but 
that was later held unconstitutional, 
on its face or as applied. 386 U.S.
at 555. (Footnote omitted).

Defendant Fisher, Commissioner of the Depart-ent of 
Health and Welfare, however, is in an entirely different 

position that was officer Fay. Fisher was not required by 
state statute to deprive plaintiffs of moneys, whereas officer 

Ray was required to make an arrest. On the contrary, de­
fendant Fisher promulgated and approved the very regulations 

that were used as the basis of depriving plaintiffs herein, 

although he had the power and the duty to make . . . neces­
sary rules and regulations for the administration of this aid. 

that were legal and constitutional. ME. REV. STAT. ANN. 
tit. 22, § 3351 (1964). Accordingly, the commissioner should 

not be given the benefit of the Pierson doctrine. Even if 
he receives benefit of the Pierson doctrine, the commissioner 
should be held to a higher standard of reasonableness.

Plaintiffs concede that the spirit of Pierson v. R a y , 
supra., would seem to immunize defendant social workers 

Tierney, Jenny, Holloway, and Smith, who were faced with the 
possible choice of following the Department's regulations or 
dereliction of duty. However, it is far from clear that at 

common law such lower echelon administrators would be immune



-15-

from liability. Lane v. Wilson, 307 U.S. 268 (1939) Proeser. 

Torts 732-733 (2d. ed_._1955) _ Jennings, Tore Liability of A d ­
ministrative Officers, 21 WINN. L. REV. 263 (1937). It is 
clear that the liability of both Commissioner Fisher and the 

other defendants will turn upon the reasonableness of their 
action as revealed by all the facts. Defendants have pleaded 

no facts that entitle them to immunity, except that the state 
is entitled to spend its welfare money the way it chooses.
See Brief of Defendants. July 10, 1968, pp. 3-6. If this 

were the basis of defendant's action, it is as a matter of 
law unreasonable and lends no immunity to them.

Not only are the individual defendants not immune as 
agents of the sovereign, but to the extent of moneys wrongfully 

withheld, the State of Maine has waived its sovereign immunity 

and consented to suit. It has adopted regulations allowing 
retroactive corrected payments and authorized judicial review 

of fair hearing decisions. See Point II of this Brief and 
Maine Public Assistance Payments Manual, Ch. I, Section C n. 5.

Maine law itself permits recovery against the sovereicn for 
torts which high administrative officials direct. Michaud v . 
City of Bangor, 159 Me. 491, 196 A. 2d 106 (1963).



- 16-

V. Conclusion:

For the reasons stated in the foregoing memorandum, 
the court should rule that the defendants are liable to 
return moneys illegally withheld and to comnensate plaintiffs 
for damages sustained. Further, the court should order 
defendants (1 ) to notify all members of the class of the 
courts' decision in this case; (2 ) to invite said persons 
to confer with the department: (3 ) and to compute with each 
such person a just and reasonable amount of compensation 
for said damage.

Respectfully submitted,

Donald F. Fontaine

William L. Robinson



Handbook of Public Assistance Administration

Part IV Eligibility, Assistance,, and Services 
------------------- “ 2/0/00Table of Contents - IV-6000

Fair Hearings
Provisions of the Act
Requirements for State Plans
Criteria for the Administration of the Plans

Interpretation
(a) Opportunity for a Fair Hearing
(b) Publication of Hearing Procedures
(c) Informing the Claimant of His Right

to a Hearing
(d) Convenience of the Claimant Considered
(e) Impartiality of Official Conducting the Hearing
(f) Impartiality of the Hearing Authority
(g) Prompt, Definitive, and Final Action
(h) Opportunity to Examine the Official Record
(i) Judicial Review

6000

6100

6200

6300

6 ^ 0

Federal Financial Participation 6500



Handbook of Public Assistance Administration

Part IV 
6000-6999

Eligibility, Assistance, 
Fair Hearings_______________

and Services
______2/ f i M

6000. Fair Hearings ;

6100. Provisions of the Act
(a) Sections 2(a)(4), 402(a)(4), 1002(a)(4), 1402(a)(4), and 

1602(a)(4) 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 plan7 is denied 
or is not acted upon with reasonable promptness."

(b) Sections 6(a)(5), 4o6(b)(2)(E), 1006(5), 1405(5), and 
1605(a)(E) authorize Federal financial participation in 
protective payments "but only with respect to a State 
whose State plan . . . includes provision for . . .
"opportunity for a fair hearing before the State agency on 
the determination . . . Jot need for protective payment^ 
for any individual with respect to whom it is made."

6200. Requirements for State Plans

A State plan for OAA, AFDC, AB, APTD, or AABD must provide that:
(a) The State agency will be responsible for fulfillment of 

fair hearings provisions, and shall specify the hearing 
authority.

(b) An opportunity for a fair hearing before the State agency 
will be granted to any individual requesting a hearing 
because his claim for assistance is denied, is not acted 
upon with reasonable promptness, or because he is aggrieved

i by any other agency action affecting his receipt or
termination of assistance, or by agency policy as it affects 
his situation.

(c) Decisions by the hearing authority, rendered in the name of 
the State agency, will be binding on the State and local 

I agency. The State agency will establish and maintain a



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6200. Requirements for State Plans ((c) Continued)
method for informing, at least in summary form, all logfel 
agencies of all fair hearing decisions by the hearing 
authority, and the decisions will be accessible to the claiman , 
their representatives, and the public (subject to provisions 
relating to safeguarding public assistance irjformation).

(a)

(e)

( f )

The hearings will be conducted by an impartial official 
(or officials) of the State agency.
Hearing procedures will be issued and publicized by the 
State agency for the guidance of all concerned.

Every claimant will be informed in writing at the time of 
application and at the time of any agency action affecting 
his claim

( 1)

(2)

(3)

of his right to a fair hearing;

of the method by which he may obtain a hearing;

that he may be represented by others including legal 
counsel; and

( k )  of any provision for payment of legal fees by the agency.

(g) The hearing will be conducted at a time, date, and place 
convenient to the claimant, and adequate preliminary written 
notice will be given.

(*) When the hearing involves medical issues, a medical assess­
ment other than that of the person o<r persons involved in 
making the original decision will be obtained and made a 
part of the record if the hearing officer or the appellant 
considers it necessary.

(i) The claimant or his representative will have the opportunity 

(l) to examine all documents and records used at the hearing;

(2) at his option, to present his case himself or with the 
aid of others, including legal counsel;

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6200. Requirements for State Plans ((i) Continued) ^
(3) to bring witnesses;
(U) to establish all pertinent facts and circumstances;
(5) to advance any arguments without undue interference; 

and
(6) to question or refute any testimony or evidence.

(j) Prompt, definitive, and final administrative action will 
be taken within 60 days from the date of the request for 
a fair hearing. The claimant will be notified of the 
decision, in writing, in the name of the State agency and, 
to the extent it is available to him, of his right to 
judicial review.

(k) When the hearing decision is favorable to the claimant, or 
when the agency decides in favor of the claimant prior to 
the hearing, the agency will make the corrected payments 
retroactively to the date the incorrect action was taken.

| (l) The hearing officer's (or panel's) recommendations shall 
be based exclusively on evidence and other material 
introduced at the hearing. The verbatim transcript of 
testimony and exhibits, or an official report containing 
the substance of what transpired at the hearing, together 
with all papers and requests filed in the proceeding, and 
the hearing officer's or panel's recommendations, will 

( constitute the exclusive record for decision by the hearing 
f , authority and will be available to the claimant at a place 
V  accessible to him or his representative at any reasonable 

time.

6300. Criteria for the Administration of the Plans
(a) The State agency establishes policies and procedures that 

carry out the purpose and provisions of this policy and 
that assure equity of treatment in relation to the laws and 
standards pertaining to assistance.
The State agency takes the necessary steps to see that there 
is uniformity in the application of agency policy in similar 
situations.

(f

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Part IV ______________Eligibility, Assistance, and Services
6006-69^9 _____________ Fair Hearings_______________________ 2/8/68.

6300. Criteria for the Administration of the Plans (Continued)
y(b) A request for a hearing is considered as any clear 

expression (oral or written) by the claimant (or person 
acting for him, such as his legal representative, relative, 
or friend) to the effect that he wants an opportunity to 
present his case to higher authority. The freedom to make

* such a request is not limited or interfered with in any way,
and agency emphasis will be on helping the claimant in sub­
mitting and processing his request, and in preparing his 
case, if needed .

(c) Opportunity for a fair hearing includes:
(1) Consideration of any action, or failure to act with 

reasonable promptness, on a claim for assistance 
which includes undue delay in reaching a decision on 
eligibility or in making a payment, refusal to con­
sider a request for or undue delay in making an 
adjustment in payment, and suspension or discontinuance 
of assistance in whole or in part:

(2) Consideration of the agency's interpretation of the 
law, and the reasonableness and equitableness of the 
policies promulgated under the law, if the claimant 
is aggrieved by their application to his situation;

(3) Consideration of agency decisions regarding;
(i) Eligibility for assistance in both initial and 

subsequent determinations,
(ii) Amount of assistance or change in payments,
(iii) The manner or form of payments, including restricted 

or protective payments, even though no Federal 
financial participation is claimed, and

(iv) Conditions of payments, including work require­
ments .

(d) Provision is made for reasonable time in which to appeal 
agency action.

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and Services
2/ 8/68

6300. Criteria for the Administration of the Plans (Continued^

(e) Final administrative action is taken within the 60-day 
limit (IV-62OO, item j), except that where the claimant 
requests a delay in the hearing in order to prepare his 
case or for other essential reasons, reasonable time is 
given and such extra time may be added to the 60 days.

(f) The agency does not deny or dismiss a request for a 
hearing except where it has been withdrawn by the clainant 
in writing or abandoned.

A request for a hearing is considered abandoned only if 
neither the-claimant nor his representative 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 on his request for a 
hearing, no reply is received by either the local or State agency.

(g) The hearing authority may be the highest executive officer 
of the State agency, a panel of agency officials or a 
hearing officer appointed for that purpose, but no person 
who participated in the local decision being appealed will
participate in a final administrative decision on such
case. The hearing authority is responsible for a final 
administrative decision in the name of the State agency on 
all issues that have been the subject of a hearing. The 
decision of the hearing authority is binding on the State 
and local agency. The State agency is^responsible for 
seeing that the decision is carried out promptly.

Insofar as may be applicable, a decision in favor of the 
claimant applies retroactively to the date the incorrect 
action was taken, and also applies prospectively.

(h) The impartial official (or officials) of the State agency 
who is responsible for conducting the hearing has not been 
involved in any way with the action in question.

(i) The issuance of hearing procedures is in the form of rules 
and regulations, or in some other form in which they will be publicized.

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6300. Criteria for the Administration of the Plans (Continue^)
(j) Written notification and, to the extent possible, oral 

explanation of the right to and procedure for requesting 
a fair hearing are given at the time of application. 
Written notice, and oral explanation as necessary, are

1 given at the time of any agency action affecting the claim
for assistance, including change in or termination of 
assistance.

(k) Individuals are informed of their right to be represented 
at fair hearings by others. At his option, the claimant 
may be represented by legal counsel or by a relative, 
friend or .other spokesman, or may represent himself.

(l) The convenience of the claimant is considered in setting 
the date, time, and place for the hearing. Notice is 
given in writing with adequate preliminary information 
about the hearing procedure necessary for his preparation 
for the hearing and effective presentation of his case. He 
is advised as to the use of witnesses and legal counsel or 
other representative, as well as any procedure or financial 
provisions for obtaining legal representation, including 
availability of fees for legal counsel from the agency.

(m) When an assessment by a medical authority, other than the 
one involved in the decision -under question, is. requested 
by the claimant, it is obtained, at agency expense, from 
a medical source satisfactory to the claimant. The hearing 
officer can also consider the physician's report in the 
record for can request additional evidence. The assessment 
of such medical authorities will be reported in writing or 
by: personal testimony as an expert witness for the hearing 
record.

(n) The claimant or his representative has adequate opportunity 
to examine material that will be introduced as evidence 
prior to the hearing as well as during the hearing, to give 
all the evidence on points at issue he believes necessary 
without undue interference, to ask for substantiation of any 
statements made by others, and to present evidence in re­
buttal .

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^300. Criteria for the Administration of the Plans (Continued)

(o) Non-record or confidential information which the claimant 
does not have an opportunity to hear or see is not made a 
part of the hearing record or used in a decision on the 
appeal. The hearing officer does not review the case 
record, or other material prior to the hearing unless such 
material is made available to the claimant or his 
representative.

6^0 0. Interpretation

(a) Opportunity for a Fair Hearing

Fair hearing procedures, including the conduct of the 
hearing, are designed to assure the right of every claimant 
to demand and obtain a fair hearing. The claimant’s 
freedom to request a hearing, whenever he believes that 
proper consideration has not been given to al] the circum­
stances surrounding his claim, is a fundamental right and 
is not to be limited or interfered with in any way.
Since, under the Federal act and the State plan, every 
^-SS^i^ved claimant is entitled to the opportunity for a 
hearing, only the claimant may withdraw his request for a 
hearing and this is to be in the form of a written with­drawal .

Effective complaint and adjustment procedures, whereby 
corrective action may be easily requested and readily taken 
without the need for a hearing, are necessary, when indicated. 
Advance opportunity afforded the recipient to respond to 
questions which could result in change of grant or termi­
nation is a significant part of such procedures. So is 
written, and whenever practical, oral information of the 
reasons for change, denial, or termination. This is 
particularly important where the agency decision is based 
on judgmental factors or eligibility requirements that 
entail evaluative decisions on the part of workers, as com­
pared to decisions based on non-debatable facts (such as 
receipt of OASI, death, etc.). However, the State and 
locaL agency adjustment procedures cannot be allowed to 
.interfere with the hearing process .

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6̂ -00. Interpretation ((a) Continued) y
The claimant's right to a hearing includes the privilege of 
presenting his case in any way he desires. Some will wish 
to tell their story in their own way, some will desire to 
have a relative or friend present the evidence for them,

I and still others will want to be represented by legal counsel. 
In many instances the recipient's position can best be 
presented by an attorney. In order for the claimant to 

I obtain an attorney, legal fees may need to be provided by
the State. Federal financial participation is available 
in meeting the cost of these fees . States are urged to 
provide payment for the services of an attorney, or refer 
recipients to attorneys otherwise available in the comm­
unity, because of the skill and knowledge of the legal, 
profession in these matters. Furthermore, the claimant 
may bring any witnesses he desires to help him establish 
pertinent facts and to explain his circumstances.
The hearing is conducted in an informal rather than formal 
court-type procedure in order to serve the best interests 
of the claimant; however, the hearing is to be subject to 
the requirements of due process .

(b) Publication of Hearing Procedures
The publication of hearing procedures in the form of rules 
and regulations or a clearly stated pamphlet hfclpc to 
emphasize the importance of the procedure. This material 
is useful to applicants and recipients or to others interested 
in their behalf. It contributes to the fairness of the 
hearing procedure, and emphasizes that there is "due process"

( in program administration affecting the right to public
assistance.

(c) Informing the Claimant of His Right to a Hearing

Written notification of the right to a hearing may be on 
the application form and other forms routinely used by the 
agency which go to applicants and recipients, as well as an 
explanatory pamphlet distributed by the agency. Oral 
explanations should also be given regarding the policy on 
hearings at intake and at time of a change in eligibility.

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6400. Interpretation ((c) Continued) ,

The purpose of informing the claimant of his right to a 
hearing, in writing, and whenever practicable orally, is 
to assure that the claimant fully understands this right.
This right is further assured by the agency explaining the 
right to a hearing in understandable terms and in being 
helpful as needed in the preparation for and conduct of 
the hearing.

(d) Convenience of the Claimant Considered
The agency has not discharged its responsibility for a 
hearing.unless it has taken all steps necessary to enable 
a claimant who requested a hearing to attend the hearing 
in person or to be represented by a person 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 and 
other costs of the claimant, his representative, and his 
witnesses.
Notice to claimant as to the hearing being scheduled in his 
behalf includes information about the fair hearing as an 
informal administrative procedure, in which a dissatisfied 
claimant or his representative m y  present his grievance 
with the help of witnesses or legal representation to show 
why action or inaction in his case should be corrected by 
the State agency.

(•) Impartiality of Official Conducting the Hearing
The person conducting the hearing shall not have been 
connected in any way with previous actions or decisions 
on which the appeal is made. For example, a field super­
visor who has advised the local agency in the handling of 
a case would be disqualified from acting as the hearing 
officer.

(f) Impartiality of the Hearing Authority

The hearing authority shall not have been directly connected 
with the agency action about which the claimant is appealing.

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6U00. Interpre tat ion ((f) Continued) «
For example, a State board member who has participated as 
a county board member or in another capacity in the local 
action on a case would disqualify himself from rendering 
a final decision on the particular case. This does not 

* preclude the State director or administrative board from
signing the decision in the name of the State agency, 
even though previously involved in the case.

(g) Prompt, Definitive, and Final Action
The hearing authority is responsible for rendering a con­
clusive decision. When the hearing authority is different 
from the hearing officer, such authority may adopt the 
recommendations of the hearing officer, or reject them and 
reach different conclusions on the basis of the evidence 
at hand, or refer the matter back to the hearing officer 
for a continuation of the hearing, because the materials 
submitted are insufficient to serve as the basis for a 
decision.
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 the State 
office staff, may be used. Remanding the case to the local 
unit for further consideration is not a substitute for 
"definitive and final administrative action."
The requirement for prompt, definitive, and final adminis­
trative actfbn means that all requests for a hearing are 
to receive immediate attention and will be carried through 
all the steps necessary to completion. The requirement is 
not met if the State agency dismisses such requests for any 
reason other than withdrawal or abandonment of the request 
by the claimant.

I The over-all time limit of 60 days between the date of the
request for the hearing and the date of the final adminis­
trative action, will serve as one of the safeguards of 
prompt, administrative action. Detailed controls of individ­
ual steps in the hearing process , such as: time limits for
accepting, forwarding, and acknowledging a request for a 
hearing, notice to the claimant, and date of the hearing will 
facilitate proper administration of the hearing process.

Handbook of Public Assistance Administration

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6400. Interpretation (continued) f

(h) Opportunity to Examine the Official Record
The record of the proceedings at the hearing, which 
constitutes the official record, is to be made available 
to the claimant or his representative to examine, if he 
desires. If any additional material is made a part of the 
hearing record, this, too, would be made available.

(i) Judicial Review

In seme 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 adminis­
trative proceedings. In other States, even in the absence 
of statutory provisions, a claimant may be able to invoke 
the remedy of judicial review on the showing that the agency 
action was "unreasonable, arbitrary, or capricious." The 
content of the notice of decision, as regards judicial 
review, would depend upon the kind of remedy available in 
the State.

6500. Federal Financial Participation

Federal financial participation is available in:
(a) Payments made to carry out hearing decisions, or to take 

corrective action prior to the hearing, including corrected 
payments retroactively to the date the incorrect adminis­
trative action was taken.

(b) Payments of assistance continued pending a hearing decision.
(c) Payments of assistance within the scope of the federally aided 

public assistance programs made in accordance with a court 
order.

H.T. No.147