decided as amended october 10 1974.: May 30, 1974.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY, Civil Action No. 114-73.
Aldisert, Gibbons and Rosenn, Circuit Judges. Rosenn, Circuit Judge, Concurring and Dissenting.
This appeal brings before us the recurring contention that an aspect of state administration of a public assistance program conflicts with the Social Security Act and with the equal protection clause of the fourteenth amendment. In a class action the plaintiffs claim to represent a class of women who have been medically determined to be pregnant and who (1) have applied for benefits under the Aid to Families with Dependent Children (AFDC) program, 42 U.S.C. §§ 601 -10, for the first time for themselves and the fetus in utero, or (2) are receiving AFDC benefits with respect to other children and have applied for an extra AFDC grant solely for the fetus. In New Jersey all such applications have been rejected. The plaintiffs' complaint alleged jurisdiction solely under 28 U.S.C. § 1343 and the district court sustained jurisdiction over the equal protection claim under § 1343 (3). It also held that it had jurisdiction over the statutory supremacy clause claim by virtue of 28 U.S.C. § 1343(4). The omission of an allegation of jurisdiction under 28 U.S.C. § 1331 undoubtedly reflected the conceded fact that no claim of any class member would reach the $10,000 jurisdictional minimum and that the claims could not be aggregated. Zahn v. International Paper Co., 414 U.S. 291, 94 S. Ct. 505, 38 L. Ed. 2d 511, 42 U.S.L.W. 4087 (1973); Snyder v. Harris, 394 U.S. 332, 22 L. Ed. 2d 319, 89 S. Ct. 1053 (1969). We will assume, on the authority of 28 U.S.C. § 1653, that the plaintiffs assert pendent jurisdiction over the supremacy clause claim. Without requesting the convening of a three-judge district court, the district judge held a single hearing pursuant to Rule 65(a) (2) of the Federal Rules of Civil Procedure on plaintiffs' application for preliminary and permanent injunctive relief. Two equal protection claims are made. One is that the state is denying equal protection to the fetus in utero. The other is that the state is denying equal protection to the pregnant women by denying AFDC benefits to them with respect to the fetus in utero. The statutory claim is that the Social Security Act definition of dependent child in 42 U.S.C. § 606(a)*fn1 makes a "child" in utero eligible, and that the state interpretation of its own regulations conflicts with the statutory definition of eligibility.*fn2 The district court ruled on both the equal protection and the statutory supremacy clause claims in favor of the state defendants, and the plaintiffs appeal.
We agree with the district court that one of the equal protection claims was sufficiently substantial to confer subject matter jurisdiction under 28 U.S.C. § 1343(3). The test of substantiality sufficient to confer federal question subject matter jurisdiction has recently been reiterated in Hagans v. Lavine, 415 U.S. 528, 94 S. Ct. 1372, 39 L. Ed. 2d 577, 42 U.S.L.W. 4381 (1974). To be jurisdictionally insubstantial a claim must be so attenuated and unsubstantial as to be absolutely devoid of merit, or clearly foreclosed by the decisions of the Supreme Court so as to leave no room for the inference that the questions sought to be raised can be the subject of controversy. Applying that test, we can say that a fourteenth amendment claim advanced on behalf of the fetus in utero is precluded by the ipse dixit in Roe v. Wade, 410 U.S. 113, 156-59, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973), that for purposes of the amendment a fetus is not a person. But the benefits under the AFDC program are not paid to eligible dependent children, but to eligible relatives with respect to dependent children. The pregnant class members are persons, and they claim that their exclusion from eligibility denies them equal protection. That claim meets the substantiality test set forth in Hagans v. Lavine, supra.
The district court's ruling that 28 U.S.C. § 1343(4) affords federal question jurisdiction over statutory supremacy clause claims without regard to jurisdictional amount is at least open to serious question. See Hagans v. Lavine, supra, 43 U.S.L.W. at 4383 n. 5; cf. Rosado v. Wyman, 397 U.S. 397, 405 n. 7, 25 L. Ed. 2d 442, 90 S. Ct. 1207 (1970); King v. Smith, 392 U.S. 309, 312 n. 3, 20 L. Ed. 2d 1118, 88 S. Ct. 2128 (1968). But assuming an equal protection clause claim substantial enough to support federal question jurisdiction under 28 U.S.C. § 1343(3), there was pendent jurisdiction over the statutory supremacy clause claim, which was, as has been recently made clear, a preferred ground for decision. Hagans v. Lavine, supra, 43 U.S.L.W. at 4386. Thus there is no doubt that the district court had jurisdiction to decide the statutory supremacy clause claim.
There is, however,a significant difference between the posture of this case and the posture in which Hagans v. Lavine reached first the Second Circuit, in Hagans v. Wyman, 471 F.2d 347 (2d Cir. 1973), and ultimately the Supreme Court. There the single district judge found that the equal protection claim was sufficiently substantial to confer federal question jurisdiction under § 1343(3) to which the statutory supremacy clause claim could be pendent. But because the single district judge sustained plaintiffs' supremacy claim, over which he had undoubted jurisdiction under Swift & Co. v. Wickham, 382 U.S. 111, 15 L. Ed. 2d 194, 86 S. Ct. 258 (1965), he had no occasion to pass upon the equal protection claim. Appellate review properly proceeded by way of the Court of Appeals and on certiorari in the Supreme Court. Mengelkoch v. Industrial Welfare Commission, 393 U.S. 83, 21 L. Ed. 2d 215, 89 S. Ct. 60 (1968). Here, because the single district judge rejected the statutory supremacy clause claim, he was faced with the need for disposition of the equal protection claim. Instead of requesting a three-judge court pursuant to 28 U.S.C. §§ 2281-84, he decided that question. But while it is clear that he had jurisdiction to decide the supremacy claim and we have jurisdiction to review such a decision, Swift & Co. v. Wickham, supra, it is equally clear that a decision denying an injunction against a state regulation of statewide application on equal protection grounds, except where the claim is so insubstantial as to be outside the subject matter jurisdiction of a federal court, is beyond the power of a single district court. Such a decision must be made by a three-judge district court, Hagans v. Lavine, supra, 42 U.S.L.W. at 4386, and appeal lies to the Supreme Court rather than here. 28 U.S.C. § 1253. We can however, and indeed must, vacate the final judgment and direct the district court to convene a three-judge district court. E.g., Mengelkoch v. Industrial Welfare Commission, supra ; Americans United for Separation of Church & State v. Paire, 475 F.2d 462, 466 (1st Cir. 1973); McMillan v. Board of Education, 430 F.2d 1145, 1150 (2d Cir. 1970); see Goosby v. Osser, 409 U.S. 512, 522, 35 L. Ed. 2d 36, 93 S. Ct. 854 (1973). Since the equal protection part of the decision is void, the statutory supremacy clause decision is interlocutory. It is, however, within our statutory appellate jurisdiction as an appeal from the denial of an injunction. 28 U.S.C. § 1292(a) (1).
A review and rejection of the statutory supremacy clause claim in an interlocutory appeal to the court of appeals, and the possible affirmance of that rejection, poses a difficult problem of sound judicial administration. Indeed the same problem is created by a district court's rejection of the statutory supremacy clause claim in any case in which that claim is joined with a claim growing out of the same operative facts which must be decided by a district court of three judges. The problem is that the court's rejection of the supremacy clause claim and our affirmance of that rejection deprives the three-judge district court of the opportunity to pass upon it, and forces that court to pass upon the constitutional claim. And since appeal from the three-judge district court lies directly to the Supreme Court as a matter of right, it, too, is deprived of the opportunity of deciding the case on statutory supremacy rather than other constitutional grounds.
In Hagans v. Lavine, supra, 42 U.S.L.W. at 4387, the Court held that the rule of decision announced in Siler v. Louisville & Nashville R.R., 213 U.S. 175, 53 L. Ed. 753, 29 S. Ct. 451 (1909) favoring decision of cases involving constitutional issues on pendent state law grounds if constitutional adjudications could thereby be avoided, was also applicable to pendent federal statutory claims implicating the constitution only through the supremacy clause. Any rule which has the effect of requiring the decision of a constitutional issue in order to terminate a lawsuit, without affording the tribunal making the final decision an opportunity to reach a preferred statutory supremacy clause ground and thereby possibly avoid the constitutional issue, is inconsistent with the policy laid down in Hagans v. Lavine, supra. That case makes clear that if a single district court judge believes he should sustain the statutory supremacy claim, the accepted procedure is to decide it on that preferred ground without requesting the convening of a three-judge court, and thereby allow appellate review in the court of appeals. But the same policy which dictates that procedure when he believes the supremacy claim should be sustained dictates the opposite procedure if he is inclined to reject it. The other two members of a three-judge district court might well disagree with him on the supremacy issue, and by deciding in plaintiff's favor on that ground avoid a more serious constitutional adjudication. See Judge Winters' opinion in Doe v. Lukhard, 493 F.2d 54 (4th Cir. 1974). We hold, therefore, that it is improper for a single district court judge to decide a supremacy clause claim against the claimant when it is pendent to a constitutional claim which must be decided by a three-judge district court. If he is not going to sustain the supremacy claim he should request the convening of a three-judge court and permit that court to pass upon the entire case.
The judgment of the district court will be vacated and the cause remanded for the convening of a three-judge district court.
ROSENN, Circuit Judge, Concurring and Dissenting.
We are confronted on this appeal with an intricate issue involving federal three-judge court procedure. The plaintiffs sought preliminary and permanent injunctive and declaratory relief against the enforcement of a state administrative policy denying AFDC benefits to unborn children. They challenged the policy on both "statutory"*fn1 and constitutional grounds. Without convening a three-judge court, a single district judge decided both grounds against the plaintiffs and entered judgment for the defendant. Plaintiffs appealed to this court.
The threshold question on this appeal is whether the state's unwritten administrative policy in this case involves "the enforcement or execution of [a] statute or of an order made by an administrative board or commission acting under state statutes" as provided in 28 U.S.C. § 2281. I agree with the implicit conclusion of the majority that it is.*fn2 I therefore concur in that portion of the majority opinion holding that the single district judge lacked power to deny an injunction against the operation of the state policy on equal ...