DECKER, District Judge.
Plaintiffs bring this action to challenge the validity of a statewide regulation relating to the payment of benefits under the Illinois Aid to Families with Dependent Children (AFDC) program. The action is brought pursuant to 42 U. S.C. § 1983; jurisdiction is invoked under 28 U.S.C. §§ 1343(3) and (4), and declaratory relief is sought pursuant to 28 U.S.C. §§ 2201 and 2202. The regulation challenged, Section 8255.1 of the Illinois Department of Public Aid Categorical Assistance Manual, provides that assistance payments for new applicants may not be made, with certain exceptions, for periods prior to the month in which the application is approved.
The action is brought in two counts, both purporting to be class actions, by Mrs. Gladys Rodriguez, an AFDC recipient, and her minor children.
Count 2 incorporates many of the paragraphs of count 1 and alleges that certain persons who applied for AFDC benefits in September, 1969 received payments in September, October or November of that year, whereas Mrs. Rodriguez received no payments until December, 1969. It is alleged that the non-retroactivity provision of the Illinois regulation, which results in this differential treatment of applicants, amounts to unreasonable and capricious discrimination in violation of the Equal Protection Clause. Plaintiffs ask for a declaration that payment retroactive to the date of application is constitutionally required, and for an injunction restraining further enforcement of the Illinois regulation.
Motion to Dismiss as a Class Action.
The count 1 class includes all persons in Illinois eligible for AFDC assistance who are required by defendants to wait longer than 30 days after application for a determination of eligibility and receipt of their first assistance check. The count 2 class includes all applicants for AFDC in Illinois who meet statutory eligibility requirements when they apply but are denied benefits for the intervening period from the date of application to the month in which their grant is authorized. For reasons to be stated, we think these are proper class actions.
A class action must satisfy the four threshold requirements specified in Rule 23(a), Fed.R.Civ.P.
Second, there are questions of law common to the classes, such as interpretation of the Illinois and HEW regulations, determination of the binding nature of the HEW regulations, and determination of the constitutionality of the Illinois regulation. Third, the claims of the representative parties are typical of the class. The named plaintiffs' interest in the litigation differs from that of the class members only in the amount of retroactive payments involved, and thus their presentation of the evidence and arguments can be expected to be representative of the class. State of Illinois v. Harper & Row Publishers, Inc., 301 F.Supp. 484 (N.D.Ill.1969).
Defendants make much of the fact that the Illinois Public Aid Code, 23 Ill.Rev.Stat. § 4-1.3, sets out numerous alternate criteria for eligibility for AFDC, such as death, physical incapacity, or unemployment of a parent. Defendants' argument is apparently that because the named plaintiffs do not represent all of the possible eligibility criteria their claims are not typical of those of the entire class. This argument is without merit, however, for it ignores the fact that the complaint defines the classes to include only eligible applicants. The reasons for eligibility are not in issue, nor does the cause of action depend in any way upon the kind of eligibility involved. Consequently, the failure of these plaintiffs to exemplify each sub-class within the Illinois statute is irrelevant. Moreover, similar class actions have been allowed when less than all possible kinds of eligible welfare recipients were named plaintiffs. See, e. g., Johnson v. Robinson, 296 F.Supp. 1165 (N.D.Ill.1967), aff'd 394 U.S. 847, 89 S.Ct. 1622, 23 L.Ed.2d 30 (1969); Denny v. Health and Social Services Board, 285 F.Supp. 526 (E.D.Wis.1968).
Finally, we conclude that the representative parties will fairly and adequately protect the interests of the class. The named plaintiffs have a sufficiently large economic stake in the proceedings to insure diligent and thorough prosecution of the litigation. See Siegel v. Chicken Delight, Inc., 271 F.Supp. 722, 727-728 (N.D.Cal.1967). And the competence of their counsel is unchallenged.
Defendants contend that certain class members, those minors who are wards of the state pursuant to Illinois law, cannot be represented in a lawsuit by anyone but their guardian. However, this argument is refuted by the applicable statute, ch. 3 Ill.Rev.Stat. § 141, which provides that "any court" may "allow any person as the next friend of a minor to commence, prosecute or defend any suit in his behalf." We think this provision is broad enough to permit representation of wards of the state in this class action.
In addition to satisfying the requirements of Rule 23(a), a class action must also meet one of the criteria set out in Rule 23(b). Rule 23(b) (2) requires that:
The complaint charges that defendants have failed to act promptly, and pay retroactive benefits, with respect to all members of the class. This alleged failure is due in part to the command of the challenged regulation, which applies to all class members. Thus, defendants have acted on "grounds generally applicable to the class." And final injunctive and declaratory relief is sought. In
Defendants' argument that the complaint is predominantly one for money damages, and therefore not maintainable under this subsection, is also without merit. Class actions have been upheld under Rule 23(b) (2) in previous welfare cases when retroactive payments were sought. See Doe v. Shapiro, 302 F.Supp. 761 (D.Conn.1969) app. dism. 396 U.S. 488, 90 S.Ct. 641, 24 L.Ed.2d 677; Solman v. Shapiro, 300 F.Supp. 409 (D.Conn.1969) aff'd. 396 U.S. 5, 90 S.Ct. 25, 24 L.Ed.2d 5. In this case, as in those, the primary relief sought by the class is an injunction against state practices which allegedly deny federal rights, rather than the recovery of past benefits.
We conclude that plaintiffs may maintain each count of this complaint as a class action under Rule 23(b) (2) of the Federal Rules of Civil Procedure.
Motions to Dismiss Count 1.
Defendant Swank, the Director of the Illinois Department of Public Aid, has filed a motion for judgment on the pleadings.
Defendant Swank also states, with no supporting authority, that the federal regulations relied upon by plaintiffs were invalidly promulgated. However, the Secretary of Health, Education and Welfare has been granted the authority to promulgate rules and regulations by 42 U.S.C. § 1302. And we note that one of the regulations here challenged, § 2200(b) (3) of Part IV of the HEW Handbook, was found to be a validly promulgated rule within the provisions of the Administrative Procedure Act in Worrell v. Sterrett, supra.
Although it appears that no notice of proposed rule making was given when these regulations were issued, the requirement of notice in the Administrative Procedure Act, 5 U.S.C. § 553(b), is inapplicable when the regulations concern matters relating to grants, as do the instant ones. See 5 U.S.C. § 553(a) (2). And if it is defendant's claim that the regulations were not published as required by 5 U.S.C. § 552(a) (1) (D), this fact cannot avail him for he concedes in his brief that he had actual notice thereof. The regulations are therefore binding pursuant to the terms of § 552(a) (1):
Defendant also contends that this action is barred by Section 26 of Article IV of the Illinois Constitution, S.H.A., which provides "The State of Illinois shall never be made defendant in any court of law or equity." Although the State is not named as a defendant in this action, this provision has been held applicable to actions against state officers and agencies. Schwing v. Miles, 367 Ill. 436, 11 N.E.2d 944 (1937); Joos v. Illinois National Guard, 257 Ill. 138, 100 N.E. 505 (1912). However, this immunity does not extend to a state officer "when he is enforcing an unconstitutional statute or is proceeding in violation of law." Moline Tool Co. v. Dept. of Revenue, 410 Ill. 35, 37, 101 N.E.2d 71, 72 (1951); People ex rel. First Nat. Bank of Blue Island v. Kingery, 369 Ill. 289, 16 N.E.2d 761 (1938). Because the allegations of this complaint fall within the above exception to the constitutional grant of immunity, the maintenance of this action is not barred.
Defendant Daniel, the Cook County Director of Public Aid, and defendant Barrett, the Cook County Comptroller, allege in support of their motion to dismiss that the federal "30-day requirement" is incorporated in the Illinois Department of Public Aid Manual
Defendants also claim that the complaints are deficient for failure to allege that the delay in issuance of the welfare checks was not caused by plaintiffs' own delay or lack of cooperation. But the federal regulation requiring payment in 30 days speaks in mandatory terms. And Section 2300(b) (6) provides:
By requiring that the case record show the reason for delay, the regulation places the burden of explaining such delay on the agency rather than on the applicant.
Defendant Barrett has moved to dismiss the action as to him, alleging that he is not a proper party. But, in his capacity as Comptroller of Cook County, his signature appears on emergency checks received by AFDC applicants. Some of the responsibility for issuing checks within the required time period necessarily devolves upon his office, and he is, therefore, a proper party to this lawsuit.
Motions to Dismiss Count 2.
By its determination, as to count 1, that the HEW regulations are binding upon defendants and require payments within 30 days of application, absent fault on the applicant's part, this court has disposed of many of the challenges to the Equal Protection allegations in count 2. However, the allegations of count 2 go beyond those of count 1 in that they assert that the Equal Protection Clause requires payment retroactive to the date of application, not merely by the thirtieth day thereafter. Whether differential waiting periods for applicants amount to arbitrary classifications, or whether there is a reasonable basis for such classifications, are questions which cannot be answered at this stage of the pleadings. Further argument, and perhaps the admission of evidence, are required. The motions to dismiss count 2 are therefore denied.
For the reasons stated herein, an order has been entered today denying all defendants' motions to dismiss, denying defendant Swank's motion for judgment on the pleadings, and allowing both counts of plaintiff Rodriguez' complaint to be maintained as a class action.
(3) Prompt action will be taken on each application, within reasonable State established time standards (which, effective July 1, 1968, will not exceed 30 days).
(4) Assistance will be provided promptly and will continue regularly to all eligible persons. * * *
(b) To assure the right to apply (IV-2200(b)):
(5) Applicants are informed of the agency's time standard for promptness in acting on applications (effective July 1, 1968, not in excess of 30 days), * * * and that it covers the time from the date of application to the date the applicants are determined eligible and receive their first assistance check * * *"
* * * the time standard for disposition of applications is 30 days from the date of application to the date the applicants are determined eligible and the effective date of their first assistance * * * "