appeal hearings to applicants, and severely limited access to assistance funds to tenants by not complying with state outreach programs. Plaintiffs seek certification as a class. All but the City defendants have filed cross motions for summary judgment. For the reasons that follow, plaintiffs' motions are denied and defendants' motions are granted.
STATEMENT OF FACTS:
1. The Energy Assistance Programs
In 1979, Congress enacted Public Law 96-126 allocating funds to states for distribution to low income households for heating assistance during the winter. These energy allowances were supplied under two federal programs: the Energy Assistance Program (EAP), administered by HEW, and the Energy Crisis Assistance Program (ECAP), administered by CSA.
Under federal regulations governing EAP, eligibility for assistance funds was based on income or participation in other assistance programs. Persons were eligible for EAP funds if their total household income did not exceed 125 percent of the CSA poverty level or the households received assistance through Aid to Families with Dependent Children (AFDC), food stamps, or statewide programs of regularly paid general assistance. 44 Fed.Reg. 69034 (1979). ECAP funds were limited to households with incomes not exceeding 125 percent of the CSA poverty level and households receiving Supplemental Security Income (SSI).
The administrative notice promulgated by HEW delineated four plans under which states could distribute EAP funds. 44 Fed.Reg. 69032-34 (1979). At its discretion, a state could have used a combination of plans. 44 Fed.Reg. 69034 (1979).
The state of Pennsylvania, acting through its Department of Public Welfare, originally elected to distribute energy assistance funds according to Plan C, one of the options federal regulations afforded it. 44 Fed.Reg. 69035 (1979). Under Plan C, all state EAP funds were transferred to ECAP. The transfer enabled DPW to distribute all state energy assistance funds in accordance with ECAP regulations. See note 2 supra. As required by federal regulations, this election was approved by HEW and CSA.
In April, 1980, DPW amended its state plan, electing to distribute any then remaining assistance funds (approximately $ 6.9 million) in accordance with Plan B. Under Plan B, the state could use AFDC, food stamps, or general assistance as a basis for categorical eligibility. 44 Fed.Reg. 69035 (1979). Additionally, states were authorized to make flat payments of EAP funds to participants in the other entitlement programs. 44 Fed.Reg. 69033 (1979). Pennsylvania's amended plan provided for a flat grant of $ 25. from EAP funds to each household receiving AFDC which had not received prior energy assistance.
To effectuate the $ 25. flat payment plan, DPW did not accept applications for EAP after April 11, 1980. Crisis assistance, however, was available until June 30, 1980. Public Law 96-126 required that any energy assistance funds (EAP or ECAP) remaining unobligated on July 1, 1980, revert to the federal government.
2. Administration of the Programs in Pennsylvania
In Pennsylvania, DPW had state-wide responsibility for administering the energy assistance programs. It contracted with county assistance offices and other community action agencies to administer the programs at the local level. These local agencies made eligibility determinations,
conducted outreach programs,
and provided short term crisis assistance such as blankets, warm clothing, and fuel. In accordance with its contract with local agencies, DPW was required to monitor local administration of the energy assistance program. Some monitoring problems were reported due to a lack of administrative funds. No monitoring, however, was undertaken regarding the availability of appeal hearings for denial of benefit determinations.
There was a maximum payment to each household under the energy assistance programs of $ 400. Limitations on payment for regular energy assistance (EAP) were based on the type of fuel supplied.
Actual payment levels were based on the percentage price increase of the primary heating fuel over the previous year. Payment of crisis assistance funds (ECAP) was based on need so long as the $ 400. maximum set for all assistance was not exceeded. If a household needed fuel and was in arrears with its dealer, the funds could be used to pay fuel/utility bills or establish a line of credit with fuel/utility vendors. More typical examples of short term crisis assistance were furnace repairs, warm clothing, and blankets.
Both programs also were designed to provide assistance to tenants who indirectly paid heating costs, i.e., where the cost of heat was included in their rent. Each renter was required to obtain a notarized statement from his landlord specifying the amount of rent allocated to heat expense and containing assurances that the rent would be reduced by the amount of assistance provided. This statement was necessary to prevent abuse of the assistance program. Because many landlords refused to supply the required statement, tenant participation in the programs was markedly lower than by those who directly paid heating costs.
For those applicants denied energy assistance benefits due to an ineligibility determination, notice of denial and right to an appeal hearing was required. This notice was provided by that organization making the ineligibility determination, county board's of assistance and community action agencies, on form PWEA-3. In Philadelphia, DPW informed applicants of denials.
3. Administration of the Programs in Philadelphia
Local administration of the crisis assistance program in Philadelphia was performed by the Philadelphia Allied Action Commission (PAAC) with which DPW contracted to distribute $ 286,000. in emergency assistance funds. Contrary to procedures employed with all other community action agencies involved in distributing crisis assistance funds, PAAC did not make eligibility determinations. Rather, eligibility determinations for ECAP were made by the County Board of Assistance (CBA).
PAAC distributed funds, conducted outreach, and tried to solve energy crisis problems.
So far as ECAP moneys were concerned, PAAC's clients filled out application forms stating their emergency and the type of assistance needed. To be approved, all applications had to be accompanied by a certification of eligibility from CBA.
Officials of PAAC then decided whether an emergency situation existed and the proper course of action to abate the crisis. As a matter of routine, all applicants with a CBA certification of eligibility were provided with some form of crisis assistance. In most instances, service was provided within 24 hours of the client's application to PAAC. Applicants who did not have a CBA certification were denied crisis payments.
One problem with which PAAC had to deal was the amount that could be paid for crisis assistance. As previously noted, there was a maximum of $ 400. for all energy assistance. In all instances, applicants to PAAC for crisis funds had already received the regular energy assistance to which they were entitled. Thus, in most instances, only $ 50. or $ 100. could be paid for crisis assistance. Occasionally, however, exceptions were made when the service needed would require more than was available to the applicant. In these instances, PAAC turned to an "overage fund" supplied by CSA.
Another problem was those persons who failed to supply all information necessary to process their application. These individuals were informed verbally by PAAC regarding the required information and that their applications must be complete by June 30, 1980, the termination date of the program. While awaiting completion, these applications were placed in a "waiting" file. In many instances the applicant never returned. No notice of a denial of eligibility was sent to them by DPW because PAAC's failure to receive necessary information was not considered a denial.
Despite the April 11, 1980, termination date for regular energy assistance, PAAC continued to process crisis assistance applications until June 30, 1980, in accordance with its contract. CBA, however, stopped making eligibility determinations on April 11, 1980. See note 7 supra. Therefore, in Philadelphia no new applicants were determined eligible for ECAP after April 11, 1980.
PAAC did service 619 people for crisis assistance between April 11 and June 30, 1980, but all had been certified eligible by CBA prior to April 12. In about 10 cases, however, PAAC provided crisis assistance to uncertified applicants after having been referred to the applicant by another agency.
Because these recipients had not been certified eligible by CBA, their assistance funds were drawn from the CSA overage account.
Following institution of this suit, it was revealed that approximately $ 37,000. remained in PAAC's crisis assistance account. Pursuant to stipulation by the parties and court approval of August 7, 1980, all remaining funds were distributed to the named plaintiffs and other eligible residents of Philadelphia.
1. Equal Protection
Plaintiffs first contend they were not afforded equal protection of the law. The basis of this claim is the fact that they were denied energy assistance funds because they had not established their eligibility before April 11, 1980, as contrasted with other low income persons who had applied prior to that time.
Plaintiffs allege that DPW officials acted in an arbitrary and capricious manner when they set the April termination date and changed the distribution plan.
The United States Supreme Court has never held that individuals have a right to receive welfare or other types of subsistence payments. See J. Nowack, Constitutional Law 681 (1978). Once provided for by state statute, however, an individual can claim an entitlement to these benefits if he is within the class of eligible recipients. This entitlement triggers due process and equal protection guarantees.
The class in this case which the named plaintiffs purport to represent is comprised of those low income individuals who may have been eligible, but did not receive energy assistance funds. In San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16, reh. denied, 411 U.S. 959, 93 S. Ct. 1919, 36 L. Ed. 2d 418 (1973), the Supreme Court, in dicta, noted that classifications based on wealth alone are not suspect requiring a strict scrutiny analysis. Id. at 23-29, 93 S. Ct. at 1291-1294. See also Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491, reh. denied, 398 U.S. 914, 90 S. Ct. 1684, 26 L. Ed. 2d 80 (1970) (class comprised of AFDC recipients receiving maximum payment did not require strict scrutiny test). Moreover, the Supreme Court never has held that potential recipients have a fundamental right to receive public assistance benefits. Therefore, classifications based on wealth should be subjected only to a rational basis analysis. See San Antonio School District, supra. Thus, if the Court finds a rational relationship between the challenged classifications and the governmental purpose of the legislation, the Court should uphold the classification.
I am satisfied DPW was not arbitrary and capricious in its decision to amend the state plan in April, 1980, and that the classification does have a rational basis. The Commonwealth defendants assert, and I agree, that the change in distribution plans provided an efficient way to allocate remaining funds to avoid over-expenditure of the federal grant and a resort to state funds. See Action Memorandum of March 21, 1980, issued by John Pazour, a DPW official. The federal regulations provided that a state would be responsible for any funds spent in excess of its allocation. 44 Fed.Reg. 69035 (1979). Obviously there had to be some provision for winding down the program and its eventual termination. At some time, there had to be a determination of how much money was left for distribution and a plan formulated to spend the remaining funds. If this had not been done carefully, it might have been done unlawfully. If it had not been done with sufficient lead-time, the nightmare of reversion to the federal treasury might have become a reality. Perhaps the date to stop taking applications might have been better set at April 15, or May 1, or some other date. I do not know, but by April 11, the heating season is drawing to a close for most Pennsylvania residents and there is no basis on which I can say DPW's selection of that date and change of distribution plans was not a valid exercise of state power or violative of the Constitution. There was, therefore, no violation of equal protection.
Plaintiffs also contend that the $ 25. plan and April 11 termination decision did not comport with the applicable federal statute and regulations. Public Law 96-126 required that states give priority to households experiencing significant increases in heating fuel costs over the previous year. Plaintiffs allege that a flat grant of a specific amount of money to all households did not satisfy the statute's priority requirement of aid to the neediest households. I am satisfied that defendants acted in accordance with the intent of Congress in this respect. It is common knowledge that home heating costs rose dramatically during the years in question, thus affecting all persons paying for heat in this area of the country.
Because the applicable federal regulations delineated income and category eligibility restrictions for energy assistance funds, distribution to these people represents aid to the neediest households. In this case, the $ 25. flat grant went to AFDC recipients who had not yet received energy assistance. Therefore, defendants acted according to the intent of Congress.
Plaintiffs also claim that $ 25. is insufficient to help low income households pay for increased energy costs. Initially, it should be noted that Congress did not intend the program to pay for all fuel costs of eligible recipients. Additionally, the $ 25. distribution plan was a product of DPW planning to avoid overspending the federal grant while providing the maximum number of eligible households with energy assistance. A federal court should defer to administrative expertise when the agency makes a determination pursuant to statutory and regulatory authority.
See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 824, 28 L. Ed. 2d 136 (1971) (court not empowered to substitute its judgment for that of the administrative agency). Unless DPW violated constitutional protections, acted contrary to legislative authority, or made an arbitrary or capricious decision, I should not overrule its administrative finding that the remaining money should be distributed by a payment of $ 25. to each household receiving AFDC which had not received energy assistance. See 2 Pa.C.S.A. § 704 (1981); 5 U.S.C. § 706 (1977). In this case, the $ 25. flat grant plan was expressly authorized by federal regulations. 44 Fed.Reg. 69035 (1979). Therefore, the federal defendants were authorized to approve the program. Additionally, under the federal regulation, DPW could have elected at the outset to distribute all available funds by direct grant to AFDC recipients, not merely the remaining $ 6.9 million. As I have already discussed above, the $ 25. distribution plan was neither violative of the Constitution nor arbitrary and capricious. See pp. 174-175 supra. Because none of the prerequisites for court modification of the agency decision has been met, I will not devise what I think is a more effective or efficient distribution system.
Another concern is that if I found the $ 25. distribution plan violative of federal statute and regulations, the $ 6.9 million would have been unobligated by June 30, 1980, and would, therefore, now revert to the federal treasury. P.L. 96-126, 93 Stat. 978 (1979). Plaintiffs, however, argue that I possess equitable powers to order funds held available beyond the statutory lapse date and re-direct them as equity and justice so require. See National Association of Regional Councils v. Costle, 184 U.S. App. D.C. 98, 564 F.2d 583, 588 (D.C.Cir.1977); Jacksonville Port Authority v. Adams, 181 U.S. App. D.C. 175, 556 F.2d 52, 56 (D.C.Cir.1977); City of Los Angeles v. Adams, 181 U.S. App. D.C. 163, 556 F.2d 40 (D.C.Cir.1977); National Association of Neighborhood Centers, Inc. v. Mathews, 179 U.S. App. D.C. 135, 551 F.2d 321, 338-39 (D.C.Cir.1976); Grueschow, supra. Although plaintiffs are correct in their assertion a more thorough exposition of the applicable law is necessary. The district court has equitable power to "suspend the operation of a lapse provision and extend the term of already existing budget authority. If, however, budget authority has lapsed before suit is brought, there is no underlying congressional authority for the court to preserve."
National Association of Regional Councils, supra, 564 F.2d at 588-89. This, however, is a discretionary power of the court, Grueschow, supra, 492 F. Supp. at 422, to be exercised only if equity and justice so require. See National Association of Councils, supra, 564 F.2d at 588; Jacksonville Port Authority, supra, 556 F.2d at 56; City of Los Angeles, supra, 556 F.2d at 50-51; National Association of Neighborhood Health Centers, supra, 551 F.2d at 338-39; Grueschow, supra.
In this case, suit was filed on June 27, 1980, three days before the budget authority lapse date of June 30, 1980. Because the budget authority existed as of the date of suit, I do possess the equitable power to suspend operation of the June 30, 1980, lapse provision and re-direct application of the funds. Plaintiffs, however, have not persuaded me that if I found the $ 25. plan invalid, equity and justice require an alternative distribution plan. In fact, if I did use my equitable powers and for example, ordered a larger flat grant per household, fewer people would receive energy assistance funds. This certainly would not be considered equitable by those households which would be excluded under a court created plan. Had I found the $ 25. flat grant unconstitutional, I would have had to weigh the inequity and equity of some court created plan against the inequity and equity of returning the entire $ 6.9 million to the federal tax payers. I am by no means sure that my plan of distribution would be so superior to the flat grant program conceived by DPW that the equities of returning the money to the tax payers may not have prevailed. In any event, the $ 25. flat grant violated neither the Constitution nor applicable standards and regulations.
As regards the April 11 termination decision, there is no requirement in the state or federal regulations that all money allocated to the state must be paid out. Rather, the federal statute merely specifies that no funds allocated under the energy assistance programs could be obligated after June 30, 1980. P.L. 96-126, 93 Stat. 978 (1979). Therefore, the April 11, 1980, termination date was a valid exercise of state power.
The county and city of Philadelphia experienced problems due to the April 11 termination date that were not shared elsewhere in Pennsylvania. In all counties except Philadelphia, eligibility determinations were performed by the same agency distributing the funds. In Philadelphia, however, while all eligibility determinations were made by the county board of assistance, crisis assistance funds were distributed by PAAC. Because the CBA would not certify anyone eligible after April 11, 1980, for EAP funds, no new applicant was determined eligible for crisis assistance after that date.
Although it might have been more effective to provide some mechanism for eligibility determinations for short term crisis assistance after the April 11, 1980, termination date, plaintiffs have failed to show me how DPW's procedure violated any federal regulations. For example, plaintiffs have not established that the use of any crisis funds to finance the $ 25. plan would arguably be a violation of federal regulations.
Additionally, although the April termination date did have an effect of depriving some potential recipients of receiving energy assistance funds, the statute and regulations do not require state administrative agencies to maintain the same distribution program throughout the year. 44 Fed.Reg. 69034 (1979). For the above stated reasons, therefore, the plaintiffs' allegations that the April 11 termination date and $ 25. flat grant plan violated the federal statute or regulations are without merit.
2. Procedural Due Process
Plaintiffs claim that the Commonwealth and City defendants violated due process by failing to provide written notice of a denial or the right to assistance. It is further alleged that these defendants failed to give adequate advance notice of the April 11 termination date and change in state plans, or provide a period of public comment prior to its implementation.
The United States Supreme Court has recognized that public assistance benefits are a matter of statutory entitlement for persons eligible to receive them. Goldberg v. Kelly, 397 U.S. 254, 262, 90 S. Ct. 1011, 1017, 25 L. Ed. 2d 287 (1970). Mere desire, need, or unilateral expectation of receiving or continuing to receive public assistance benefits does not constitute a property interest protected by the 5th and 14th Amendments. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972). Rather, to establish a protected property interest in a particular benefit, the potential recipient must demonstrate a claim of entitlement. Goldberg, supra, 397 U.S. at 262, 90 S. Ct. at 1017.
Plaintiffs in this case have failed to establish a valid claim of entitlement to energy assistance benefits.
For example, plaintiffs, Burton, Hopkins, and Lowery failed to present adequate documentation to PAAC to receive benefits as required by state practice.
Affidavits of Burton, Hopkins, and Lowery. According to their own affidavits, these plaintiffs were informed of the deficiency in their documentation. Their failure to receive benefits, therefore, did not constitute a denial of eligibility status. Because these plaintiffs did not fulfill prerequisites necessary for determination of eligibility, they did not establish a claim of entitlement to the funds. Hence, they had no property interest in energy assistance benefits.
Plaintiff Miles received crisis assistance from PAAC in February, 1980. Affidavit of Miles. Returning for additional crisis assistance in May, 1980, Miles was informed by PAAC that it only provided assistance once per applicant. Affidavit of Miles. This was part of the administrative policy of the crisis assistance program.
Having received crisis assistance in February, 1980, Miles was ineligible in May of that year. Failing to establish eligibility, Miles cannot claim an entitlement triggering due process protections. Affidavits of non-parties such as Carole Wong, do not set forth specific facts from which a claim of entitlement and a denial of due process could be established. Fed.R.Civ.P. 56(e). Wong's affidavit states she was denied assistance because of her failure to produce a utility shut-off notice. Although a shut-off notice is not required by federal regulations,
Wong failed to specify whether she applied for assistance before or after April 11, 1980, a fact crucial to her due process claim. The affidavit is therefore defective for lack of specificity under Rule 56(e).
Assuming these plaintiffs could establish entitlement they further complain of due process violations by the Commonwealth and City defendants' failure to provide written notice of a right to appeal and a fair hearing upon the ineligibility determination. The exhibits submitted in this case include an application form and denial of assistance form. Both documents contain language explaining the applicant's right to appeal the administrative decision.
The Commonwealth defendants maintain that these forms were distributed to all applicants. I conclude that the statements on these forms were sufficient notice to all applicants of their right to appeal.
Whether these forms actually were distributed would be a genuine issue of material fact if plaintiffs had produced affidavits setting forth specific facts showing that individuals did not receive the forms. Fed.R.Civ.P. 56(e). Plaintiffs have failed to do so. The affidavit of Attorney Jeffrey Greenwald alleging that no written notice of denial or right to an appeal hearing was provided by the local agency in Northampton County, fails to meet the specificity requirement of Rule 56(e). This affidavit also is based on hearsay. Rule 56(e) requires that an affidavit supporting a motion for summary judgment be made by an affiant competent to testify to matters stated in the affidavit, be made on personal knowledge, and set forth facts admissible in evidence. Fed.R.Civ.P. 56(e). Attorney Greenwald's affidavit fails in all respects. It also should be noted that no affidavit filed in support of plaintiffs' motion for summary judgment alleged sufficient facts to support a claim that procedural due process had been denied, i.e., the applicant would have been eligible for assistance, had applied before April 11, 1980, was determined ineligible for assistance, and received no written notice of denial or right to appeal.
Plaintiffs also claim these same circumstances violate federal regulations. This allegation is meritless. Plaintiffs cite 45 C.F.R. § 1061.70-7(c)(5)(i) as authority for requiring written notice to applicants denied crisis assistance. The regulation provides:
(5) In addition, operators will develop procedures for reviewing denials of assistance which will include:
(i) Provisions for notifying the applicant in writing of the reasons for denial of assistance, that he/she may request a review of the denial and may submit additional information ... which the applicant believes would warrant a favorable determination;
This regulation must be read in conjunction with 45 C.F.R. § 1061.70-7(b)(3), defining "denial of assistance" for purposes of ECAP. The regulation provides:
(T)here has been a denial of assistance when the benefits or services and/or funds currently are available, the local program operator has the authority to provide or disburse them, and the applicant falls within or believes that he/she can prove that he/she falls within the income eligibility and established program guidelines.