PHILBROOK v. GLODGETT

Decision: 9 votes for Glodgett, 0 vote(s) against
Legal provision: Aid to Families with Dependent Children (AFDC--provisions of the Social Security Act)

None

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Argument of Richard S. Kohn

Chief Justice Warren E. Burger: We'll resume arguments in number 73-1820, Philbrook against Glodgett and the related case.

Mr. Kohn, you may proceed.

Mr. Richard S. Kohn: Thank Your Honor.

Good morning Mr. Chief Justice and may it please the Court.

The issue presented by this case is whether children who are in need due to the unemployment of their fathers can be denied assistance under the unemployed-fathers program solely because their father is eligible for an amount of an unemployment compensation no matter how small.

The District Court applied the plain meaning of Section 607 (b) (2) (c) (ii) of Title 42 and held that the statute only applies to actual receipt and that the father has an option of declining to accept his unemployment compensation in accepting ANFC UF if those benefits are higher.

Just a few days ago, this Court in the case of Alcala versus Burns applied the ordinary language rule and we asked the Court to do that in this case and affirm the judgment of the District Court.

First of all, the language of Section 607 (b) (2) (c) (ii) is absolutely clear refers to receipt of unemployment compensation benefits is working the disqualification.

The -- there are substantial evidence and other provisions of the same statute that if Congress wanted to say eligibility for receipt, they knew have to do so.

In a statute -- in the section of the statute immediately preceding the one at issue here (b) (1) (c), the Court had to -- the Congress referred to eligibility requirements for AFDC and the in the course of that statute which is enacted on the same day as 607 (b) (2) (c) (ii), the Court used the language qualified to receive and refers to another section of the statute which defines that as being eligible for the receipt of benefits upon the filing of an application.

So, it's perfectly clear that if the Congress had intended to refer to eligibility for receipt in the subsequent section, they could've done so by referring to Section (d) (3).

Also, in Section 602 which is this Court knows from the Alcala versus Burns case has to do with the requirements of state plans which must be included if HEW approval is to be obtained.

There's a Section 602 (a) (12) which has to do with receipt of all the aid assistance and that provision says that if a failing receipt or for recipient in a household receives all the aid assistance during the period that he does so, the family is disqualified or that person cannot be included within the assistance group.

The legislative history of 602 (a) (12) which is found in 1950 US Code in congressional administrative news at page 3479, this is not cited in my brief, indicates that with respect to that old aid assistance provision, the Congress was clearly concern about double benefits that a family should not be able to receive both.

And since the Congress used the language “is receiving” in that Section and “are receives” in the Section before the Court, we think that that is evidence that when Congress was concerned about double benefits, that was the language they used.

And also in Section 602 (a) (15) which has to do with providing advice to recipients of AFDC about birth control, the Court specifically -- the Congress specifically used the language “eligible for receipt or receiving.”

So, it's perfectly clear from related provisions of the Act that when Congress wanted to refer to eligibility to receipt they could do so and they did on several occasions.

Justice Byron R. White: Do you have any specific legislative history that supports your reading on the statute?

Mr. Richard S. Kohn: Your Honor the -- I find the legislative history very confusing.

I can't say that it supports me, I can't say that it goes against me.

I think it silence on the point.

The only time that the Congress referred to this -- the disqualification of an unemployment compensation benefits was in a different context.

They were concerned about the situation where family was receiving unemployment compensation, it ran out in the first week of the month to the second week of the month and under the 1967 statute, the family was then disqualified from receiving any AFDC for the entire month.

And that was the question that Congress addressed in the legislative history.

I asked the Court to apply the rule that where the legislative history would tend to confuse the issue or sheds no light on it that the plain language of the statue should be followed.

It's important to recognize that until from 1935 until 1961, there was no unemployed fathers program.

In 1935, Congress created the program, it was an optional program to be applied by the states if they desire too and they also made it optional in the states is to whether they wanted to supplement inadequate unemployment compensation benefits with AFDC payments.

And of the 22 states that had the program, all but three permitted supplementation of benefits and the obvious reason for doing this was the gross in equity of having certain children who may have received $20.00 or $25.00 of unemployment compensation and then in comparison with other families they could've received several hundred dollars in terms of AFDC.

Now, there's no question that in 1967 -- I might add that at the time the 1960 amendment was enacted, the country was in an economic recession and at the same time that Congress enacted this provision, they also enacted the Temporary Extended Unemployment Compensation Act.

So, it's clear that while Congress may have regarded unemployment compensations the first line of defense, after 61 it was not the exclusive line of defense and Congress recognized that unemployment compensations which is not designed to satisfy the needs of the family might be inadequate.

In 1962, Congress had the opportunity to revoke the legislation or not renew it and yet they decided to continue it for another five years.

There's no question that in 1967, Congress made a change.

They no longer provided for the supplement but the big question is whether they intended to bar all those families that were receiving unemployment compensation for many assistance or whether they were going to permit the family an option.

Now, we argue that the Congress must have intended an option not only because the plain language says so but the equity demands it.

And we argue that this is not -- it -- this doesn't undercut the unemployment compensation system and that it certainly is designed to make sure that all children who are similarly situated are treated alike.

Justice Byron R. White: Well, is there ever been a time when the amount of unemployment compensation approximated the amount of benefits?

Mr. Richard S. Kohn: Yes Your Honor, there's no question that in -- depending on a particular situation the amount of unemployment compensation may exceed the amount of AFDC and in that situation, --

Justice Byron R. White: Is that the amount?

Mr. Richard S. Kohn: Yes Your Honor.

It -- because unemployment compensation depends entirely on the amount of money that the wage earner earns and if you have a wage earner who's making a good income with a small family, the amount of unemployment compensation which is set at one-half his average weekly earnings could very well exceed the amount of AFDC.

But our point is that for low income families and for the AFDC population, it's highly unlikely that unemployment compensations would exceed AFDC.

Now, the state has argued that the Congress may have intended that unemployment compensation benefits in an inadequate amount could be supplement with general assistance which is a wholly state funded program.

I would refer the Court -- and that that general assistance could bring the family up to the state needs standard.

In our -- in the appendix on pages 29 and 63, the Court will find certain interrogatories that we served on Bert Smith who was a director of AFDC in Vermont and his answers to the interrogatories, the answers are on page 63.

And in numbers eight and 10, he was asked specifically whether general assistance would bring the family up to the state need standard.

And he responded that it would be highly unlikely.

General assistance is intended as a short term resource to deal with emergency situations, it pays the rent, it pays the oil bill but it's highly unlikely that it would bring the family up.

And as a matter of fact, each of the -- the named plaintiffs in our case did receive a slight kind of general assistance at some point when they were receiving unemployment compensation.

And each of those cases the amount of the joint benefits was below what they would've received under AFDC.

Chief Justice Warren E. Burger: What would be the situations Mr. Kohn hypothetically if a man, unemployed receiving unemployment compensation insurance or having to take in whichever option he wanted, then on reporting is offered employment, that suitable employment, that refuses to accept it, would -- that would affect his unemployment compensation claim in such able?

Mr. Richard S. Kohn: Yes Your Honor.

Chief Justice Warren E. Burger: What effect if any would it have on the welfare payment?

Mr. Richard S. Kohn: Exactly the same.

Chief Justice Warren E. Burger: Same in each case?

Mr. Richard S. Kohn: Yes Your Honor, a recipient of AFDC UF is required to actively seek employment if he refuse to take it the family would be disqualified.

That's my understanding.

Chief Justice Warren E. Burger: Puts a hardship on the family as the consequence of the conduct of the father, does it not?

Mr. Richard S. Kohn: That's true Your Honor but it's my understanding that that's how the program operates.

Justice Potter Stewart: That is the same criteria?

Mr. Richard S. Kohn: I believe so.

Justice Potter Stewart: For AFDC UF unemployed father?

Mr. Richard S. Kohn: I believe so.

In other words, a father cannot accept the assistance from the state and yet refuse to go to work if the work is offered.

Also, there is a provision of the AFDC statute which is designed to encourage the man to go to work.

So, that if he works under a hundred hours a month, he can -- the income he earns is deducted from the AFDC grant but his family still receives benefits as long as his earnings are below the state need standard.

But I believe if he refuse to accept suitable work, there will be a disqualification.

Justice Potter Stewart: Of course he -- if he then just left his family, his children would suffer, this aid continue to get AFDC under the --

Mr. Richard S. Kohn: That's correct Your Honor.

Justice Potter Stewart: -- family program.

Mr. Richard S. Kohn: And as a matter of fact, that would be a consequence of the -- of interpreting these provisions as a mandatory bar.

Fathers are actually encouraged to leave their families so that the remnants can receive AFDC under Section 606 and the father can continue drawing his unemployment benefits and that would be an absolutely observed result.

Also, the children who were hurt are children whose fathers have been laid off or who are eligible for unemployment compensation.

The paradox is that if a father quits his job without good cause or for some reason because is ineligible for unemployment compensation, his children actually benefited because they receive more money and that's an incredible result.

Chief Justice Warren E. Burger: I suppose there are some difficulty in making comparisons because the unemployment compensation is a terminal kind of payment and the welfare payment is open end, is it not?

Mr. Richard S. Kohn: Well, I'm not sure --

Chief Justice Warren E. Burger: Very largely open end?

Mr. Richard S. Kohn: I'm not sure it's true with respect to the UF program Your Honor.

The UF program is designed to deal with the needs of children who are deprived of parental care support due to the unemployment of the parent.

Like unemployment compensation, the objective is to try to get the parent back to work and if there is suitable employment available then once the father goes back to work, if he's working over a hundred hours a month, the grant would seize.

And is the same with unemployment compensation, the big difference in the program is that one is based on the actual needs of the family and the other isn't.

The father could have a marginal job earning $100.00 a week, if he becomes unemployed he's entitled to a maximum of 50 week -- $50.00 a week in benefits while the family under AFDC could be eligible depending on its size for many hundreds of dollars.

Justice William H. Rehnquist: More than the father earned when he was working at $100.00 a week?

Mr. Richard S. Kohn: Well, that would depend on the size of the family and other factors Your Honor.

I suppose it's --

Justice William H. Rehnquist: Assuming from what you just said, I would gather that's true.

Mr. Richard S. Kohn: I would expect in some situations it might be true.

If the family meets the eligibility criteria for AFDC, then the amount of the grant depends on the size of the family and the amount of rent they have to pay in that sort of thing.

And in some cases, I suppose it could exceed his earnings.

Now, if the Court agrees with us, it is a fact that since 1968 when this legislation was amended HEW even though its regulations says that it is the receipt of benefits that works the disqualification.

The secretary has interpreted this to mean eligibility for receive and the state and the HEW has argued that this interpretation should be given great weight by the Court.

We would ask the Court, first of all if it agrees with our -- and if it agrees with the District Court that the statutory language is plain then under Shea versus Vialpando there would be no reason to consider the secretary's opinion on the matter.

At any rate, his interpretation has a clear variants with his own regulation which does speak in terms of receipt of assistance.

The -- in footnote 4 of its brief, HEW has suggested that one reason why Congress would not have used the language “eligibility for receipt” would be that they were concerned about a gap between the time the father applies for an unemployment compensation and the time that it is granted with the implication that AFDC benefits should be available to the family within that period.

This maybe true in some circumstances but I think it would be a fairly rare situation.

Unemployment compensation benefits are available after a one week waiting period.

This is true in Vermont and I believe it's true in most other states.

Under HEW regulations, the state has 45 days in which to give an eligible person his AFDC money.

In Vermont, it's a 30-day waiting period and in Vermont, if there is any kind of gap between the time the man applies for his unemployment benefits and the time he gets them that is taking cared of by general assistance to tie them over.

But it certainly not the general rule that any problem would be created by that hiatus in time.

Now, we have asked the Court that if it should reverse the District Court on statutory ground that it should reach and decide the constitutional question and the -- it's true that the District Court did not reach that question.

However, it was fully briefed and argued downstairs unlike the Alcala case it has been briefed in this Court and we would argue that the exigencies of the economic situation require the Court to go ahead and decide that issue.

The case will affect 25 states that have the UF program and there are many thousands of children who would be affected.

We believe that the standard review was that -- that was enunciated in the Marino case and some have argued that that is sort of a strict rationality standard and that the government must show that whatever objective the provision serves must be furthered by the statutory classification.

And it's our contention that this statutory classification serves no governmental purpose.

And certainly doesn't serve the purposes of the AFDC UF program which was designed to take care of needy children and even if you -- even if one of the objectives was to try to make parents self-supporting and get them back to work that's taking cared of by provisions within the AFDC statute.

The government has argued that one rational basis would be that there's been a historical reliance on unemployment compensation as the first line of defense for unemployment.

I would say that for purposes of this argument, we would concede that Congress has not have to and not the UF program if they choose not to and that there are distinctions that could be drown between that and the situations described in Section 606.

But once Congress has recognized the problem and enacted an unemployed-fathers program it can't then divide that class of children into sub groups based on whether the father receives a source -- some income from a certain source and if that is a -- as irrational if they exclude a red headed families from the -- from that group.

Also, as the legislative history shows, while at one time an unemployment compensation was considered the first line of defense.

Certainly was -- could no longer be said that that was true after 1961 when Congress specifically recognized that that unemployment compensation could be supplemented.

Justice Potter Stewart: You have -- it is optional with the state, is it not?

Mr. Richard S. Kohn: I'm sorry Your Honor?

Justice Potter Stewart: The UF program is optional with the state?

Mr. Richard S. Kohn: Yes sir.

Justice Potter Stewart: Explicitly so?

Mr. Richard S. Kohn: Yes sir.

Justice Potter Stewart: How many states have --

Mr. Richard S. Kohn: At the present time 25 states Your Honor.

Justice Potter Stewart: About half, exactly half?

Mr. Richard S. Kohn: That's correct.

Justice Potter Stewart: While I've interrupted you, you remember yesterday from the other end of the bench there were stirrings about the possibility of this not being appealable, this case not being appealable with this Court?

Mr. Richard S. Kohn: Yes sir.

Justice Potter Stewart: Have you given that thought?

Mr. Richard S. Kohn: Yes I have Your Honor.

In my judgment, the appeal was properly here on direct appeal from the three-judge court.

Some members of the Court yesterday referred to a prior decision of the Court involving this Supremacy Clause and suggested that issue had been settled many years ago.

I think the Court was referring to the Swift versus Wickham case.

A few weeks after Swift was decide, the Court decided brotherhood of locomotive Engineers versus Chicago Rock Island Pacific Railroad, 382 U.S. at 423 and unlike Swift which dealt solely with a preemption issue, the Brotherhood of Locomotive Engineers case involved an attack based both on a preemption issue and the constitutional ground.

The three-judge court was convened, they did not decided the constitutional ground.

They only decided the preemption issue and appeal was taken direct to this Court from that judgment and the Court held that it had jurisdiction.

And specifically distinguish the Swift case on the grounds that in that case no constitutional issue had been presented.

Justice Potter Stewart: In the Second Circuit, we have a case I guess it's going to be heard either today or tomorrow, certain Circuit issue as you know as perhaps of this dichotomize.

Mr. Richard S. Kohn: Yes sir.

Justice Potter Stewart: And if the District Court decides a case such as this only the statutory ground, preemption ground if you will.

Mr. Richard S. Kohn: Yes sir.

Justice Potter Stewart: It goes to the Court of Appeals even though jurisdiction, the District Court is purely pendant because of -- by reason of the constitutional claim and if the Court decides on unconstitutional grounds, comes directly here we, have a case and I said to be argue tomorrow --

Mr. Richard S. Kohn: Yes.

Justice Potter Stewart: -- involving just that kind of procedure that's been developed in the Second Circuit and that would suggest I suppose that if these were in the Second Circuit at least, this case has decided by the District Court would've been appealable into the Court of Appeals and only to the Court of Appeals.

Mr. Richard S. Kohn: Well, --

Justice Byron R. White: If it were heard by a single judge?

Mr. Richard S. Kohn: Yes sir.

Justice Byron R. White: The statutory issue could be heard by a single judge?

Mr. Richard S. Kohn: I don't think there's any question that if the three-judge court in this case had dissolved itself and sent this back to be decided by a single judge and the appeal would --

Justice Potter Stewart: On the fact as of now?

Mr. Richard S. Kohn: Yes sir.

Then the appeal would have -- latter, the Court of Appeals.

Justice Potter Stewart: And that is the Second Circuit premised, is that it?

Mr. Richard S. Kohn: Yes that's correct, that's correct.

But, if this Court were to decide that a direct appeal can be taken to this Court from a three-judge court only when the three-judge court has decided the constitutional issue, that would be a radical departure from prior decisions of the Court.

In Hagans v. Lavine, this Court has dictum which states precisely the contrary.

In the case of Gonzales versus Automatic Employees Credit Union which I believe was the most recent case to deal with it.

The Court expressly -- that had to do with a case where the three-judge court had denied injunctive relief and --

Justice Potter Stewart: Others in constitutional ground?

Mr. Richard S. Kohn: That's correct and but the Court expressly said that the decision would not have an impact on cases where the Court grants an injunctive relief and just as a practical matter, it seems to me that the whole policy of the expedited appeal procedure is -- if a federal -- a lower federal court has decided a case, issued an injunction which arguably paralyzes the federal statute and arguably as against the express intent of Congress, then it's important that the issue will be resolved immediately.

Whether the Court does that on constitutional grounds or statutory ground, I find a very -- I have a difficult time understanding why that should make a difference.

Chief Justice Warren E. Burger: That should always be dealt with by states the least, could it not?

Mr. Richard S. Kohn: By the state --

Chief Justice Warren E. Burger: By a state if the action --

Mr. Richard S. Kohn: Well, it could be Your Honor.

Chief Justice Warren E. Burger: And frequently is, is it not?

Mr. Richard S. Kohn: Well, I'd like --

Chief Justice Warren E. Burger: Where a single judge does act and there is no direct appeal?

Mr. Richard S. Kohn: That's correct Your Honor but as in this case where the Court -- the District Court applied the ordinary language, well, it seem to absolutely clear that what Congress' intention was.

Now, under those circumstances what -- why should the order of the state pending an appeal through the Circuit and to the Court of Appeals which may take a year and a half.

I might say that in our case, --

Justice Byron R. White: Is that -- is that exactly through a -- the sort of -- in federal court at all by virtue of the pending jurisdiction --

Mr. Richard S. Kohn: Yes sir.

Justice Byron R. White: -- on that and that that's not -- the Court isn't obliged to undertake that kind of before hand.

Mr. Richard S. Kohn: There is a discretionary aspect Your Honor, --

Justice Byron R. White: And so that --

Mr. Richard S. Kohn: -- I understand that.

Justice Byron R. White: -- so that maybe in the federal court by sufferance anyway unless you can come under 31331 which you don't see.

Mr. Richard S. Kohn: Oh, I do Your Honor.

I've alleged that --

Justice Byron R. White: And we don't -- then you don't even get into this argument.

Mr. Richard S. Kohn: Quite possibly.

We -- I've briefed these issues Your Honor.

I've argued jurisdiction on many alternative grounds.

I think we can come here on 1331.

I should say that just on this point that after the District Court made a decision in this case which essentially provided the family with an option, the -- on the agreement of the parties -- the state moot for a state as was just suggested.

The Court was unwilling to do that and the parties agreed that instead of the option pending the appeal, unemployment benefits would be treated like any other resource.

And since January of 74 in the State of Vermont that the family becomes eligible for an unemployment compensation, he goes over the welfare office and they give him a supplement up to the state need standard.

If the Court had not granted the conditional stay and just said, “No, I've made -- we've made our decision and the option is going to apply now.”

I think the government would argue that that would be a catastrophic result.

And this is the problem when the appeal has to -- went its way through the Court of Appeals in a situation like this.

Also, there are great public interest verifications.

There are 25 states involved in every state but Vermont right now, any child whose father is eligible for unemployment compensation is being denied benefits and that's an issue that should be revolved.

Justice Potter Stewart: Has this been litigated in any other state, this --

Mr. Richard S. Kohn: There's only one other case pending that I know of Your Honor in the state of Maryland and my understanding is that it's been stayed pending a decision on the merits in this Court.

Justice Potter Stewart: Stayed in the District Court?

Mr. Richard S. Kohn: Yes sir.

Justice Potter Stewart: No decision yet in the District Court?

Mr. Richard S. Kohn: No decision and I don't know whether injunctive relief has been granted but I doubt it.

The final question that I'd like to address if I have a moment is a mootness question.

The class action in this case was not certified as a form of class action by the District Court.

And when the Sosna case and the Jacob's case came out, I wrote a letter to the clerk, I advised him of this and also filed an affidavit by one of our named plaintiffs and her name is Sarrison who is presently receiving unemployment compensation under this so called Glodgett plan.

I believe that that saves the case from mootness and I would also argue that even if it doesn't and even if Mr. Sarrison should go back to work within the next month or so that this is the type of problem that's capable of repetition yet evading review.

When a man becomes eligible for unemployment and still drawing it, one of two things will happen, either he will go back to work long before the issue could be resolved in the Supreme Court or he'll exhaust his benefits and was brought out yesterday with the emergency situation because of the recession the benefit period is 39 weeks with the emergency legislation passed by Congress is up to 52 but it's highly unlikely that a case could come to this Court in that period of time.

Justice William H. Rehnquist: For Sosna, it gives you remedy for that in a class action.

Mr. Richard S. Kohn: Yes Your Honor that's true but it's my feeling that the named plaintiff has a right to vindicate his claims and that I'm not sure that simply because he is permitted to bring a class action that would affect other people that that would undercut the exceptions for mootness doctrine.

Justice William H. Rehnquist: Well, I think we said in Sosna that if it wasn't moot as to the name plaintiff there is no problem but if it's moot as to the named plaintiff.

Mr. Richard S. Kohn: Well, Sosna only dealt with the class action situation Your Honor and it didn't get into the exception to the mootness doctrine that this Court enunciated in Southern Pacific versus ICC and more of the Oglebay where you were dealing with the specific name plaintiff.

Justice William H. Rehnquist: And there was a possibility of repetition as to him?

Mr. Richard S. Kohn: Yes sir and we would argue that the families that we represent are locked in a cycle of poverty.

It's highly likely that they will be often on this program for the foreseeable future particularly with the recession.

And we have some figures which are at this time are not a part of the record of the court but I'll be glad to file it showing the history of each of these families, these are figures that were compiled by the Department Social Welfare in Vermont and you will see that in fact there were periods of unemployment, they would go off unemployment, go to work for several months and then they would be back on again.

And it certainly the situation of Mr. Sarrison who was unemployed from January 74 until June of 74, worked from June of 74 until November of 74 and since that time has been unemployed and is receiving assistance.

Justice Potter Stewart: What's the so called Glodgett plan?

Mr. Richard S. Kohn: The Glodgett plan is a plan that was formulated in Vermont Your Honor after the District Court's decision.

Under the Glodgett plan, instead of the options taking effect, a family that's eligible for unemployment compensation is permitted to accept those benefits and then go over to the welfare department where he gets a supplement to bring him up to the state need standard.

Justice Potter Stewart: With the total reduction?

Mr. Richard S. Kohn: That's correct Your Honor.

Justice Potter Stewart: And that's just an interim plan pending the final decision of this litigation, --

Mr. Richard S. Kohn: That's correct.

Justice Potter Stewart: -- is that it?

Mr. Richard S. Kohn: And the effect of it is to do exactly what would've been done had the Court resolved this case on constitutional grounds.

All they're doing is treating unemployment compensation as a resource, the same way they would work on this for veteran's benefits or any thing else.

I think it's all I have.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Kohn.

Mr. Patton, do you have anything further?

You have three minutes left.

Argument of William L. Patton

Mr. William L. Patton: Mr. Chief Justice and may it please the Court.

And the only point I want to respond to is the question of whether the appeal lies to this Court of the Court of Appeals.

At the time we filed the jurisdictional statement, we relied on statement in Hagans agains Lavine which properly characterizes dictum but which we believe the reflected the laws as it then stood.

If the Court and I think it's obvious does wish to reconsider those cases, we'd like permission to file a supplemental brief and we request 30 days in which to file it because it presents a number of questions of their important to governments litigating policy that I'm not in the position to answer it this time.

Justice Potter Stewart: Would your brief be in support of the position that this case is appealable direct in this Court or don't you know?

Mr. William L. Patton: I'm not sure Mr. Justice Stewart because there's -- actually as a practical matter; we would have preferred to go to the Court of Appeals in this case because we think we could've resolved the statutory problem there.

And as the general matter, the government doesn't have a preference as to which court to go to as long as it knows where it's going to go.

But we do think there are some things that we are to consider for one thing the rule to be the same as to state and federal defendants.

Otherwise, we'll end up in a situation where when joined in the same action the state defendant go to this Court and federal defendants go to the Court of Appeals.

And the questions about expedited review where an injunction is been granted and those are the kinds of things we'd like to consider and submit in our supplemental.

Chief Justice Warren E. Burger: If you really need 30 days for that counsel if you can submit it less than printed form -- fully printed form.

Mr. William L. Patton: I wouldn't think so Mr. Chief Justice.

We want to confer with the states and we also want to talk to some federal agencies to get their view on the question.

I would think -- I think 15 days would be sufficient if we can dispense for printing.

Chief Justice Warren E. Burger: Very well, we'll expect it in 15 days and if the counsel -- if Mr. Kohn wishes to respond he may do so.

Justice Harry A. Blackmun: Mr.Patton, this doesn't come as a surprise to you does it we postpone jurisdiction in your case.

Mr. William L. Patton: It came as a surprise to me yesterday afternoon Mr. Justice Blackmun because --

Justice Harry A. Blackmun: Well, what is the point?

Mr. William L. Patton: We had anticipated that jurisdiction was postponed on dependent parties doctrine and we didn't think that this question was for shattered in Gonzales though we now recognized the issue and we respond to it.

Justice Potter Stewart: We have MTM this morning.

Mr. William L. Patton: Yes sir and --

Justice Potter Stewart: Add to a little fuel to the fire.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Print this transcript Transcript:

Argument of William L. Patton

Chief Justice Warren E. Burger: We'll hear arguments next in 73-1820, Philbrook against Glodgett and 74-132, Weinberger against Glodgett.

Mr. Patton, you may proceed whenever you're ready.

Mr. William L. Patton: Mr. Chief Justice, may it please the Court.

These cases are here on direct appeal from the judgment of the three-judge court in the District of Vermont.

The cases involved the relationship between the aid to families with dependent children or AFDC, unemployed father program and unemployment compensation benefits.

The principal statute involved is Section 607(c)(2)(ii) which I shall refer to an argument as the mandatory bar and that provision appears on page 3 of our brief.

As this Court knows, the AFDC program is a program of cooperative federalism funded by the system of matching state and federal grants.

The federal statute sets out certain conditions that state plans must satisfy in order to receive federal funding and the mandatory bar provision provides that state plans must provide for the denial of AFDC benefits with respect to any week for which such child's father receives unemployment compensation under an unemployment compensation law of a state or the United States.

Now, the plaintiffs in this case were all families which were eligible for AFDC benefits but for the fact that in each case the unemployed receive unemployment compensation under state law and in each case, the amount of unemployment compensation received was considerably less than the AFDC benefits for which the family would have been eligible.

Justice Harry A. Blackmun: Does the record show whether they're still unemployed, Mr. Patton?

Mr. William L. Patton: Mr. Justice Blackmun, it does not show the status of things.

As of this moment, we do know that Mr. Saracen who was an intervenor continues to be unemployed and continues to receive unemployment compensation.

At the bottom of page 6 of our brief, there is table which shows the differences in benefit levels and I want to call the Court's attention to the fact that there is one error in that table.

The Derosia family was eligible for $394.00 a month in AFDC and rather than $56.00 in unemployment compensation, that figure should be $224.00.

Justice Potter Stewart: Sorry, what page of what --

Mr. William L. Patton: Page 6 of our brief.

There is a table at the bottom which shows the difference in benefits.

Justice Potter Stewart: Now would you make the --

Mr. William L. Patton: The -- instead of $56.00 in the right hand column, that should be $224.00

Justice Potter Stewart: That's the Derosia family.

Mr. William L. Patton: Yes sir.

Now, we can't assume that this table is necessarily representative for a number of reasons.

First of all, of course, AFDC benefits depend on a number of variables, the extent of other resources available to the family and primarily on a number of dependents.

Unemployment compensation is generally 50% of the previous salary.

Justice Potter Stewart: In any event, it doesn't have anything to do with how large the family is or --

Mr. William L. Patton: It does not.

Well, there maybe some relations Mr. Justice Stewart and that some state unemployment programs have higher maximums depending on the number of dependents but to that only to that limited extent.

Justice William J. Brennan: Well, was it likely in that case Mr. Patton that the -- you got the highest, maybe as high as an AFDC benefits program for the same family?

Mr. William L. Patton: Certainly, in the case of low-income people, it is not likely.

However, there is one additional factor and that is that Vermont like most states has a general assistance program and the record does not show the extended benefits that were received in this case but we do know that at least the Percy family received general assistance.

As I understand the Vermont General Assistance Program, it is basically an item by item need program.

If a family finds that it can't pay its rent for example, it can apply for general assistance for the amount of the rent.

But --

Justice Potter Stewart: -- administered through the counties?

Mr. William L. Patton: In Vermont, I believe it's administered on a statewide basis but in many states, it is administered through counties.

Justice Potter Stewart: And it's some?

Mr. William L. Patton: And it's wholly state-funded.

Justice Potter Stewart: Um-huh.

Justice William J. Brennan: In fact, they may have declared of the AFDC figures on this column on page 6.

Your position is what as with respect so much of that how they lose if the father receives unemployment compensation.

Mr. William L. Patton: They lose all of it Mr. Justice Brennan.

Justice William J. Brennan: -- fact you know and what's happened here is they waived their own employment compensation.

Is that right?

Mr. William L. Patton: That?

Justice William J. Brennan: And the question is whether the word “receives” in the statute Section 2 with respect into it for which says the child's father receives unemployment compensation means actually receives?

Mr. William L. Patton: Yes sir, that's the statutory question.

Justice William J. Brennan: And he waives there that he doesn't actually receive it.

Mr. William L. Patton: That's correct.

Then the District Court -- originally the statute was challenged on constitutional grounds.

The District Court decided it could avoid the question by holding that fathers have an option. They can turn down an employment compensation.

Now, Mr. --

Chief Justice Warren E. Burger: Another way of putting the question and isn't it that whether they have an option to take whichever there is the hire?

Mr. William L. Patton: Yes, sir.

We believe that --

Chief Justice Warren E. Burger: The key, the unemployment scheme is for something for which they pay it.

Mr. William L. Patton: Well, private employers make contributions to the unemployment compensation scheme.

I'm not sure -- I believe that employees do make a contribution.

The District Court's construction, we believe is contrary to the legislative history and structure of the act in administrative construction and those sources will be discussed in more detail by Mr. Caleb for the State of Vermont --

Justice Harry A. Blackmun: Whether if they deal with -- this is the result of congressional policies, Mr. Patton?

Mr. William L. Patton: Well, Mr. Justice Blackmun, I'm not sure -- we do know that in 1960 -- let me -- perhaps if I just went into briefly the history of the Unemployed Father Program, we can see how this provision came into the law.

Up until 1961, AFDC did not extend to families with an unemployed father and in that year it was so extended on an experimental basis.

Now, at that time, the law provided that states had an option.

They could deny AFDC if the father received unemployment compensation or not.

Some states did deny, I think only three, the other states supplemented.

Now, in 67, 68, when the Unemployed Father Program was made permanent, the Senate wanted to continue that optional system but the House Bill provided for the mandatory bar.

The difficulty with giving fathers an option is really threefold.

First of all, it makes the mandatory bar a nullity.

There's simply be no reason to have a provision requiring a termination if it could be circumvented by an option.

And secondly, it operates on an assumption that Congress wanted to encourage the unemployed to turn down unemployment benefits.

And finally, in operation, it shifts significant costs from the Unemployment Compensation Program that is funded by private employers to AFDC which is of course funded by State of Internal Revenues.

Justice William H. Rehnquist: Mr. Patton.

Mr. William L. Patton: Yes sir.

Justice William H. Rehnquist: Three-judge District Court didn't decide this case on a constitutional basis did it?

Mr. William L. Patton: It did not.

Justice William H. Rehnquist: Are you sure that whether the appeal should come here rather than to the Court of Appeals?

Mr. William L. Patton: Well, it did enter an injunction that it be construed the statute and then ordered the Secretary of HEW to approve the plan in accordance with its decision.

Perhaps I've -- as I read Hagans against Lavine, a three-judge court was convened here because of the constitutional challenge and we don't think it can be said that the constitutional claim was fictitious or frivolous on the phase of the complaint and having jurisdiction, it could then consider the statutory claim.

Justice William H. Rehnquist: It certainly had jurisdiction but then their question is who has jurisdiction over the appeal if it decides it only on the statutory claim?

Justice Byron R. White: Suppose the single judge claims that file that the counsel aren't suppose to hear the statute but the statutory is supposed to be heard first and not just the single judge issue, it is not required to be heard by a three-judge court.

Therefore, I'm going to hear it and suppose they've done that and he had decided against you, now you would come before us, would you?

Mr. William L. Patton: I believe you would have.

Justice Byron R. White: Well, why would you?

Mr. William L. Patton: But I --

Justice Byron R. White: How did you come here now because it's not an issue which requires to be heard by a three-judge -- even if the three-judge court decides?

Mr. William L. Patton: It is not an issue that's require to be hear by the three-judge court but the three-judge court can hear it if --

Justice William J. Brennan: But why -- how does that make it appealable here merely because the three-judge court is if it's not in Constitution.

Justice William H. Rehnquist: Don't you have to argue in response to Justice Brennan the Supremacy Clause determination is the constitutional determination for purposes of our appellate jurisdiction?

Justice William J. Brennan: But we believe we get to that.

Mr. William L. Patton: Well --

Justice William H. Rehnquist: White against William?

Mr. William L. Patton: Well, it may have been rejected but then in Hagans against Lavine, I thought that it was again reconsidered though not adopted.

At least --

Justice Byron R. White: I thought they can provide it for Mr. Justice Brennan.

Justice William J. Brennan: With seven pages from 536 to 543 -- they live up to that.

Mr. William L. Patton: No no, I don't suggest Hagans against Lavine resolves the question.

Justice William J. Brennan: But we got to decide in this case, don't we whether you're far from here?

Mr. William L. Patton: You do, Mr. Justice Brennan and if it --

Justice William J. Brennan: I gather the same applies, doesn't it, for the State of Vermont's appeal in the other case.

It's so different isn't that quite --

Mr. William L. Patton: Well, there is a jurisdictional question with respect to the United States which is quite a bit different from the one with respect to the state.

Justice William J. Brennan: -- 43.

Mr. William L. Patton: That's right.

Justice William J. Brennan: No, but I mean on this question of whether there's the proper direct appeal, I gather Vermont came here from the same judgment, didn't they?

Mr. William L. Patton: They did.

Justice William J. Brennan: And so whether that's a proper appeal here is same question in that case is missing isn't it?

Mr. William L. Patton: It would be the same question.

Justice William H. Rehnquist: Except that Vermont might be able to rely on the Supremacy Clause as a constitutional basis but certainly the Federal Government in no event can rely on the Supremacy Clause if you're talking about the construction of a federal statute.

Mr. William L. Patton: That's correct.

We are not concerned with the conflict of the supremacy issue.

Now, assuming that -- we assume that there is jurisdiction for the appeal and frankly it's something that if the Court is concerned that we'd like a permission to submit a supplemental brief on and I think our opponent would concur in that.

Justice William J. Brennan: You mean now on this issue?

Mr. William L. Patton: On this, in the issue of the appealability of the order.

Now, assuming that for the moment that the case is properly here and assuming that the Court agrees with our construction of the statute, and then as a further question concerning the constitutional challenge, I don't think there's any doubt that but that the Court can reach the constitutional question in this case if it wishes to but it need not and we have suggested that it'd be remanded and one of the reasons we suggested that it'd be remanded is because the AFDC Program is so complex that we had thought the Court might benefit from the District Court's decision of the issue in light of a correct construction of the statute and it's also true that the record could be supplemented particularly concerning a general assistance benefit but we do not contend that it's absolutely necessary to remand.

There is sufficient material in the record to consider the constitutional question.

And as to the constitutional claim, appellees' claim is basically that the mandatory bar operates to exclude children solely on the ground that their father receives unemployment compensation even though they maybe in need.

And it does operate that way but implicit in appellees' claim is the assumption that the AFDC program is in fact the comprehensive public assistance program or that it is constitutionally required to be and we think either assumption is correct.

Need is -- the primary goal of the AFDC Program but Congress is operating within a framework of the limited amount of funds and given that context, it has chosen to provide assistance to those who are least able to change their circumstances.

And father's unemployment compensation maybe less than AFDC benefits but it maybe supplemented by general assistance.

States maybe stimulated to upgrade their programs and there's some indication that that has in fact occurred.

In addition, the unemployment compensation benefits promote in attachment to the workforce, it's a weekly benefit.

Vermont recipients are required to go down to the public employment office to get their checks and fill out certain forms.

Justice William J. Brennan: Just as some states are upgrading their unemployment compensation benefits as they in fact reach merely with the AFDC.

Mr. William L. Patton: Mr. Justice Brennan, I'm not prepared to guarantee that that occurs.

They are upgrading them.

I know for example and I understand that when this case started in Vermont, the maximum benefit was 50% of the previous salary, it's now 60% of the previous salary.

In conjunction with minimum wage laws, there is some upward movement but I think it is true that people in the low income groups are going to have lower benefits.

Now, since this is a divided argument, I've used up my time.

I want to stop but I want to reiterate one point that we made in our reply brief.

We don't contend that the mandatory bar is the wisest or the most socially desirable policy that could be devised but we do contend that it is the policy that Congress adopted and that rejection on constitutional grounds would involve the Court in factors which it is repeatedly rejected and is inappropriate for judicial resolution.

Chief Justice Warren E. Burger: Mr. Kalib.

Argument of David L. Kalib

Mr. David L. Kalib: Mr. Chief Justice, may it please the Court.

My name is David Kalib and I represent appellant Philbrook and the State of Vermont in this action.

Vermont's position is that an unemployed father is excluded from receiving public assistance benefits under the unemployed father segment of the AFDC program if he's either eligible to receive or is currently receiving unemployment compensation benefits and this position is primarily based upon our understanding of congressional intent that was incorporated into the January 1968 Amendments for the Social Security Act.

The House Ways and Means Committee in 1967 considered a vast number of amendments to that Act and they expressed an intent in their committee report to cut federal spending by reducing the public assistance roles.

In addition for cutting the federal spending, they wish to get public assistance recipients back into the way before us.

The 1967 House Senate Conference Committee also considered the same vast number of amendments for the Social Security Act.

They looked at two versions of how to treat unemployment compensation in relationship to public assistance benefits.

First, there was a Senate version which retains the option of allowing states to supplement unemployment compensation benefits.

The House version on the other hand denied assistance to any unemployed father who was receiving unemployment compensation.

This House Senate Conference Committee recommended to the Congress the adoption of the version formulated by the House Ways and Means Committee namely the version that denied benefits to any unemployed father who was receiving unemployment compensation.

Thus, it's pretty clear the intent of Congress was to enact the version to reduce federal spending and at the same time cute the welfare roles.

And in addition, this Conference Committee Report recognized that the word “received” was either equivalent to or equated with the term qualified to receive.

Since 1968 --

Chief Justice Warren E. Burger: Could this probably solve by having the state provide in its statute that no event shall the AFDC benefits exceed the amount of unemployment compensation insurance or would you rather have other problems there?

Mr. David L. Kalib: I think you would run into other problems.

It would still go against the mandatory bar in Section 607 if you establish that and I think we'd be in trouble with federal matching funds in violation of the AFDC Program.

Since 1968, the Department of Health Education Welfare along with the State of Vermont and then I cannot speak for any other states but on the best information I have, they've all been interpreting this congressional intent to exclude a father who has not developed and exhausted his unemployment compensation benefits.

In other words, if he is eligible for those unemployment compensation benefits, he must go there first and exhaust those benefits prior to any application for public assistance.

The District Court decision which formulated an option plan of allowing the recipient equally eligible for both programs to reject the lower benefit, I think in terms of the District Court's decision it was phrased that if his AFDC benefit is higher he can reject the unemployment compensation benefits and vice versa.

This goes against and completely contrary to the congressional intent of reducing federal spending.

It even goes beyond the Senate version of restoring the option of allowing states to supplement and the Senate version was ultimately rejected by Congress.

The District Court plan also establishes an either/or alternative and that is the unemployed father completely rejected his unemployment compensation and rely 100% on public assistance to meet the needs of his children and there is nothing that we can find in legislative intent to create that scheme.

We think that Congress realized that this purpose, the mandatory bar provision could be accomplished by a joint reading of Section 402 and Section 407 of the Social Security Act.

Section 402 mandates each state to require each applicant for public assistance to develop, utilize and exhaust all his benefits, excuse me, all his income and resources that are available.

If we start with that premise and say that an individual who was eligible for unemployment compensation benefits must go down and develop and utilize those benefits and he does so, Section 407 of the Social Security Act precludes him from receipt of any public assistance benefits under the unemployed fathers section.

In addition, adoption of the District Court option plan which shifts the burden of providing aid to children of unemployed fathers from the unemployment compensation insurance trust funds funded totally from the private sector namely the employers to the public treasury and increase the public assistance roles again contrary to Congress' intent back in 1967.

In effect, what the District Court option plan does is legislate an income floor for all unemployed fathers, and that income floor is based upon the state's standard of need.

Therefore, any unemployed father could forego these unemployment compensation benefits and get public assistance up to that state standard of need.

Historically, these programs have been treated as two separate and distinct programs.

Unemployment compensation has always been the first line of defense for a temporarily unemployed work.

The system is back from the initial creation of the Act in 1935 and we think this is true today.

We see just last year, the Federal Unemployment Act extended benefits for those unemployed who exhausted their normal state benefits.

On the other hand, public assistance benefits have always been treated as a last resort.

You rely on relief after you've exhausted everything else and I think this Court recognize these two principles in the Java case.

As harsh as this all seems, particularly with respect to the plaintiffs in this case who have received a substantially less amount of money from unemployment compensation and they have from public -- would have from public assistance had they been eligible, Vermont has tried to mitigate or alleviate that that hardship to some extent and that is by supplementing unemployment compensation through its general assistance program.

Now, I have to admit, however, that the supplement is not necessarily going to be equal to the difference between the unemployment compensation benefit and the state's standard of need.

This depends on a host of factors, one being the individual's income within the prior calendar period and other being is need.

The state program is entirely state funded, it's based upon an emergency grant provision and the individual applicant must have no other resources available.

If he does have resources available, he has to exhaust those other resources.

So, in some cases, the individual get nothing from general assistance.

In some cases they'll get an amount which his total income will be less than the state's standard of need and in other cases, he could conceivably get a grant which would make his total income exceed the state's standard of need for a 30-day period but it is available to that applicant.

Justice Potter Stewart: How long is the unemployment compensation run in Vermont 52 weeks?

Mr. David L. Kalib: Well, there is initial benefit period of 26 weeks; there is a 13-week extension period under Vermont statute for a total of 39 weeks.

As I understand, the program now under the New Federal Unemployment Act of 1974, there are 13 more weeks additional benefits that an individual can get and that I understand is totally federally funded and does not come out of the private trust fund.

Justice William J. Brennan: -- pending tax for another 13 week?

Mr. David L. Kalib: That's correct.

Justice William J. Brennan: 65 weeks or something.

Mr. David L. Kalib: That's correct Mr. Justice Brennan and the Senate version of the New Tax Bill drive its amendment does take on another 13 weeks to that.

Justice William J. Brennan: But that's all you think fully federally funded.

Mr. David L. Kalib: The --

Justice Potter Stewart: Final 13 weeks?

Mr. David L. Kalib: The final 13 weeks as provided for under the ‘74 Federal Unemployment Act is federally funded and it does not come out of the employment trust fund.

As I understand the Senate proposal, it will be another 13 weeks again federally funded and not out of the trust funds.

Justice Potter Stewart: So far is just a --

Mr. David L. Kalib: A proposal by --

Justice Potter Stewart: Senate Bill that's going into conference this week.

Mr. David L. Kalib: That's correct as I understand it.

To summarize, our position is very simplistic with a very complicated program.

If you are eligible to receive unemployment compensation, traditionally, you have to go on exhaust that benefit before you can come on the welfare roles.

Unemployment has been treated differently than any other available resource and I think there's a specific congressional intent to treat that resource differently and we urge this Court to regress and remand.

We would like to -- if there is time reserve it for tomorrow, Your Honor, in rebuttal.

Chief Justice Warren E. Burger: We'll have to check your time in the morning but you will not take up your case, Mr. Kalib.

You will have only one minute now, we'll take you first thing in the morning.

Mr. David L. Kalib: Thank you, Your Honor.