Opinion
Civil Action No. 92-CV-1002 (DGT).
June 19, 2001
Peter Vollmer, Law Offices of Vollmer Tanck, Uniondale, NY, for Plaintiffs.
Jose L. Velez, Office of the Attorney General of the State of New York, New York, NY, for Defendant Wing.
William Frankel, Corporation Counsel of the City of New York, New York, NY, for City Defendant.
MEMORANDUM AND ORDER
This is a suit for declaratory and injunctive relief by five plaintiffs, Geraldine and Arthur Boyland, Joan and Robert Ford and Phyllis Scirica against Brian J. Wing, as Commissioner of the Office of Temporary and Disability Assistance of the New York State Department of Family Assistance ("the State"), and Jason A. Turner, as Commissioner of the New York City Human Resources Administration ("the City"), alleging that the City, as a matter of policy and practice, misadministers the federal emergency Low-Income Home Energy Assistance Program ("HEAP") and that the State fails to correct the City's illegal policies and practices in violation of the plaintiffs' constitutional right to due process, as well as in violation of various other federal and state laws and regulations. Plaintiffs now and by this motion seek the certification of a plaintiff class defined as follows:
All New York City public assistance households responsible for their own heating costs who sought the assistance of the New York City Department of Social Services or one of its agents to resolve a heat-related energy emergency at any time since February 27, 1989 and
(1) did not receive an emergency HEAP benefit due to the City Agency's failure to inform them of the availability of such benefits, or
(2) failed to timely receive an emergency HEAP eligibility determination or assistance to resolve the energy emergency within 48 hours of request, or within 18 hours if under life-threatening circumstances, or
(3) received a state-funded loan pursuant to New York Social Services Law § 131-s to resolve the heat-related energy crisis without evaluation of eligibility for an emergency HEAP grant, and were compelled to repay such state funds.
Pl.'s Mem. of Law Supp. Mot. for Class Certification and Classwide Preliminary Relief [hereinafter "Pl.'s Mot."] at 1. The State opposes certification. The City does not oppose certification but suggests slight alterations in the definition of the class.
Plaintiffs' original motion sought both class certification and preliminary injunctive relief. However, the plaintiffs have agreed, in their Reply, to hold the request for preliminary injunctive relief in abeyance pending the implementation and evaluation of the City's "pilot program," which represents the City's own effort to remedy some of the alleged inadequacies of current policies and practices. See Pl.'s Reply Mem. of Law in Further Supp. of Mot. for Class Certification [hereinafter "Pl.'s Reply"] at 19.
Background
In considering a motion for class certification, a court must assume the truth of the plaintiffs' allegations. See Shelter Realty Corp. v. Allied Maintenance Corp., 574 F.2d 656, 661, n. 15 (2d Cir. 1978);Ventura v. New York City Health and Hosp. Corp., 125 F.R.D. 595, 598 (S.D.N.Y. 1989); DeAllaume v. Perales, 110 F.R.D. 229, 305 (S.D.N.Y. 1986) ("[F]or purposes of determining class certification issues, the allegations are taken as true and the merits of the complaint are not examined"); Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 2152 (1974) ("We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.") Accordingly, below are the relevant facts as plaintiffs allege them to be:
A. The Low-Income Home Energy Assistance Program
The federal Low-Income Home Energy Assistance . . . program was enacted to enable low income households to meet their heat-related home energy costs, and to intervene in energy crisis situations on behalf of such households to ensure that they do not suffer an interruption in heating energy.
[T]he HEAP program seeks to furnish the highest level of HEAP assistance to vulnerable households with the lowest incomes and the highest energy costs in relation to their income level. Consonant with that goal, participating states must target their outreach activities and HEAP allocation to public assistance households and to non-public assistance households of modest means whose income does not exceed 150% of the federal poverty level or 60% of median income in that State.
Although participating States retain discretion to determine HEAP eligibility, they are obliged by law to give priority to eligible households in the greatest need. If a participating State opts to narrow the range of persons eligible for HEAP assistance, it must do so in a manner that impacts those of higher economic means first rather than those who occupy lower economic strata.
When heat-related emergencies arise during cold weather periods, participating States must reserve a designated percentage of their total annual HEAP allotment to provide some form of emergency energy assistance to resolve the energy crises of HEAP-eligible households within 18 to 48 hours of their request for such help.
If the applying State opts to permit one of its public agencies to administer these "emergency HEAP" funds, that public agency must have the capacity to undertake a timely and effective energy crisis intervention program, and the ability to carry out that program in local communities.
Participating States may seek additional federal HEAP funds over and above their annual allocation if they agree to make state funds available as a supplement or alternative to federal HEAP funds to low-income households who are ineligible for HEAP funds or are denied them because the State's annual HEAP allocation has already been expended.
Whenever a participating State renders a determination of HEAP eligibility, it must notify the applicant household in writing, and offer that household an opportunity to contest the determination through an administrative fair hearing.
B. New York State Participation in Federal HEAP Program
In New York State, the State Agency is required to supervise the administration of the HEAP program statewide, and it, in turn, requires each local social services district to administer the HEAP program in accordance with applicable federal and state statutes and regulations, the New York State HEAP Plan and the State Agency's HEAP Manual.
The City Agency comprises a single social services district under the direct supervision of the State Agency, and is responsible for the administration of the HEAP program within New York City.
Pursuant to this administrative scheme, the City Agency must ensure that prospective applicants are afforded the opportunity to apply for HEAP benefits and are provided with clear and detailed information about the HEAP program's scope and coverage.
The City Agency must ensure that requests for emergency HEAP benefits are evaluated during each annual time period specified by the State Agency.
The City Agency must ensure that outreach activities are undertaken so eligible households are made aware of HEAP assistance, assure that no eligible household is denied the opportunity to apply for HEAP, and assume responsibility for rendering timely eligibility determinations.
When an eligible public assistance household has lost or is about to lose heat-related energy service, the City Agency must ensure that the emergency energy crisis is resolved with 48 hours of the request for help, or within 18 hours if the household is already without power or fuel for heating.
Although the City Agency is authorized to provide state-funded loans when public assistance households are threatened with interruption or termination of heat-related utility service,
. . . in no event may any part of such payment be made unless the social services official first determines under the particular circumstances that the recipient is not entitled, at the time of requesting such payment, to a [non-repayable] grant pursuant to . . . any other provision of [the Social Services Law] which could be utilized to cover all or a portion of the amount to be recovered.
One such provision which must be explored before resort to a state-funded loan is New York Social Services Law § 97 which requires local social services districts to ". . . participate in the federal low-income home energy assistance program and to assist eligible households found in such districts to obtain low-income home energy assistance."
[C.] Defendants' Implementation of Emergency HEAP Program
In New York State, the emergency HEAP program begins every November 15 and ends by September 30 of the following year, or when the emergency HEAP funds are exhausted.
New York City public assistance ("PA") households who pay separately for their own heat are categorically eligible to receive emergency HEAP benefits.
New York State policy requires all local districts including New York City to issue a state-mandated written notice (DSS Form 3494) when emergency HEAP benefits are denied.
When a PA household informs the City Agency that it is at risk of termination of heat-related energy service, the City Agency must evaluate the household's eligibility for regular and emergency HEAP benefits before assessing eligibility for any other program to resolve the crisis.
If the PA household does not qualify for regular or emergency HEAP benefits for a particular HEAP session, the City Agency must evaluate the PA household's eligibility for a New York State-funded loan pursuant to New York Social Services Law § 131-s.
When the City Agency determines that a particular household is eligible for emergency HEAP benefits, it enters a "Code 80" payment into the City Agency's computer records.
From the vantage point of the household, emergency HEAP grants (Code 80's) are more beneficial than state-funded emergency energy assistance pursuant to New York Social Services Law § 131-s (code 41's) because the household does not have to repay "Code 80" emergency HEAP grants to the City Agency. Unlike "Code 80" emergency HEAP grants, state-funded emergency energy assistance (Code 41's) must be repaid to the City Agency by reducing the future public assistance grants to the household.
The following chart lists the total amount of emergency HEAP funds spent throughout New York State between 1993 and 1999, the total amount of those funds that were spent by New York City, and the New York City expenditure as a percentage of the state-wide expenditure:Year Statewide New York City NYC % of Total
1993 $36,813,818 $1,211,705 3.29% 1994 $37,416,520 $1,102,521 2.95% 1995 $32,207,104 $1,019,685 3.17% 1996 $33,564,203 $ 117,175 0.53% 1997 $32,655,454 $1,351,478 4.14% 1998 $26,760,128 $ 780,274 2.92% 1999 $28,081,769 $ 846,481 3.01%
The following chart lists the annual New York City emergency HEAP expenditure, the amount of that sum that was paid to New York City public assistance households as emergency HEAP ("Code 80") expenditures, and the amount of that sum that was paid to higher-income New York City households who were not on public assistance:Year NYC Emerg HEAP Total Emerg HEAP to Non-PA Emerg HEAP to PA
1993 $1,211,705 $1,025,047 $186,658 1994 $1,102,521 $ 871,237 $231,284 1995 $1,019,685 $ 923,202 $ 96,483 1996 $ 177,175 $ 44,205 $132,970 1997 $1,351,478 $1,232,083 $119,395 1998 $ 780,274 $ 666,908 $113,366
The following chart lists the annual amount of "Code 41" state-funded loans issued by the City Agency to New York City PA households and the annual amount of "Code 80" emergency HEAP benefits issued to the same households for the applicable years:Year Code 41 Loan Code 80 Emer Heap Grant
1990 $ 8,363,959 $121,322 1991 $10,043,364 $107,708 1992 $10,915,256 $190,204 1993 $14,714,763 $186,658 1994 $18,312,864 $231,284 1995 $16,374,451 $ 96,483 1996 $16,549,615 $132,970 1997 $16,671,276 $119,395 1998 $17,426,302 $113,366
Pl.'s Mot. at 3-11 (citations omitted).
Summarizing this data, plaintiffs contend that over the course of the last decade, although the City expended all or most of its annual emergency HEAP allotment, the great percentage of each year's allotment was disbursed to non-public assistance households occupying a position financially superior to the public assistance households which are generally more in need of HEAP benefits. See id. at 12. Further, within the category of public assistance households, the vast majority of heating disbursements made to such households by the City involved Code 41 loans rather than Code 80 grants. See id. As a whole, although it is the largest situs of public assistance households within the State, the City received no more than 4.14% of statewide annual HEAP disbursements over any given year during the time period here in question and, in 1996, received as little as 0.53% of the statewide HEAP allotment. See id. The plaintiffs suggest, on the basis of these facts, that the State systematically underfunds the City as far as the allocation of HEAP benefits goes due in part to the "City's historical propensity to under-utilize this federal funding source in favor of state-funded loans." Id.
Consistent with this view of the inadequacies of the City's and State's HEAP programs, plaintiffs have instituted this action demanding declaratory and injunctive relief, the latter geared toward a reformulation of the relevant policies and practices so as to ensure that public assistance households are kept informed of the availability of HEAP benefits, that HEAP applications are accepted and processed in a timely fashion, that emergency HEAP eligibility determinations are likewise handled expediently and that the erroneous disbursement of Code 41 loans in lieu of Code 80 grants to public assistance households is identified and dealt with in an appropriate fashion. See Pl.'s Reply at 11.
Plaintiffs seek the certification of a class to include those public assistance households that sought heat-related energy assistance since February 27, 1989 but were not timely evaluated for such assistance, those households that did not receive a HEAP notice of eligibility for such assistance and those households that were provided with a state-funded loan which they were subsequently obliged to repay through prospective reductions to their future public assistance grants. See Pl.'s Mot. at 12-13.
Discussion (1)
In order to certify a class, a litigant must satisfy the four requirements of Rule 23(a) of the Federal Rules of Civil Procedure and demonstrate that the proposed class action fits into one of the three categories described in Rule 23(b). See Green v. Wolf Corp., 406 F.2d 291, 298 (2d Cir. 1968). Although the burden of showing that these conditions are satisfied falls on the plaintiff, see, e.g., In re Industrial Diamonds Antitrust Litigation, 167 F.R.D. 374, 378 (S.D.N.Y. 1996); In re Alcoholic Beverages Litigation, 95 F.R.D. 321, 324 (E.D.N.Y. 1982);Demarco v. Edens, 390 F.2d 836, 845 (2d Cir. 1968), the plaintiffs are not obliged to make an extensive evidentiary showing in support of their motion. Follette v. Vitanza, 658 F. Supp. 492, 505 (N.D.N.Y. 1987), vac'd in part on other grounds by 671 F. Supp. 1362 (N.D.N.Y. 1987). Rather, they are required only to "set forth sufficient factual information to enable the Court reasonably to permit the action to continue as a class action under Rule 23." Harrison v. Simon, 91 F.R.D. 423, 429 (E.D.Pa. 1981); see Follette, 658 F. Supp. at 505; Boucher v. Syracuse University, 1996 WL 328441 at *1 (N.D.N.Y. Jun. 12, 1996).
In pertinent part, Rule 23(a) of the Federal Rules of Civil Procedure provides that:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members in impracticable [hereinafter "the numerosity requirement"], (2) there are questions of law or fact common to the class [hereinafter "the commonality requirement"], (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class [hereinafter "the typicality requirement"], and (4) the representative parties will fairly and adequately protect the interests of the class [hereinafter "the adequate representation requirement"].
Fed.R.Civ.P. 23(a). Each of these requirements will be addressed in turn.
(a) Numerosity
The numerosity requirement is satisfied when the class is numerous enough to make ordinary joinder of all members impractical. The plaintiffs are not obligated to identify the precise number of class members; a reasonable estimate is sufficient. See Robidoux v. Celani, 987 F.2d 931, 935 (2d. Cir. 1993). The plaintiff may rely on reasonable inferences drawn from available facts particularly where, as here, more precise information about the size of the class is within the defendants' control. See German v. Federal Home Loan Mortg. Corp., 885 F. Supp. 537, 552 (S.D.N.Y. 1995) ("[L]ack of knowledge of the exact number of persons affected is not a bar to certification where the defendants alone have access to such data"); Clarkson v. Coughlin, 783 F. Supp. 789, 798 (S.D.N Y 1992); Folsom v. Blum, 87 F.R.D. 443, 445 (S.D.N.Y. 1980); Lewis v. Gross, 663 F. Supp. 1164, 1169 (E.D.N.Y. 1986); Ventura v. New York City Health Hospitals Corp., 125 F.R.D. 595, 599 (S.D.N.Y. 1989). There need only be evidence in the record to suggest that a class exists and that a rough estimate of its size can be made. See German, 885 F. Supp. at 552;Clarkson 793 F. Supp. at 798.
Courts have not rigidly enforced a specific numerical threshold required for class certification, and class actions with under 100 members have been allowed to go forward. See Korn v. Franchard Corp., 456 F.2d 1206, 1209 (2d Cir. 1972) (certifying class which may be limited to 70 investors); Fidelis Corp. v. Litton Industries, Inc., 293 F. Supp. 164, 170 (S.D.N.Y. 1968) (certifying class of 35-70 individuals); Sharon Steel Corp. v. Chase Manhattan Bank, 88 F.R.D. 38, 44 (S.D.N Y 1980) (certifying class of 87 members). In short, there is "no magic minimum number that breathes life into a class." German, 885 F. Supp. at 553; Bruce v. Christian, 113 F.R.D. 554, 556 (S.D.N.Y. 1986).
In the case at bar, the proposed class easily satisfies the numerosity requirement. Relying on the defendants' own statistical data, the plaintiffs suggest that the class "already numbers in the thousands and grows ever larger with the passage of time." Pl.'s Mot. at 17. According to municipal data for the 1994-1995 HEAP season, 3,442 New York City public assistance households were responsible for their own heat and potentially eligible for HEAP benefits. See id. at 17. Of these, 873 submitted heat-related utility disconnect notices to the City Agency, but only 79 received Code 80 HEAP benefits. See id. This is in contrast to 422 households which erroneously received Code 41 state-funded loans.See id. The City addressed the situation during a February 5, 1996 conference with this court by cancelling $54,125 in loans to 172 of the public assistance households and by further promising to refund any repayments made by and cancelling any moneys outstanding from the balance of the households to which Code 41 loans were erroneously issued. See id. at 17-18. Extrapolating from these facts, as they are entitled to do, the plaintiffs reason that because the proposed class extends back to the 1989-1990 year of the HEAP program, it is reasonable to estimate that approximately 4,220 New York City public assistance families erroneously received Code 41 loans in lieu of Code 80 grants over the time period at issue. See id. at 18.
This number is obtained by multiplying the 422 public assistance households to which Code 42 loans were mistakenly issued during the 1994-1995 season by eleven to account for the time period here in question and subtracting the 422 households from the 1994-1995 season, since the mistakes made that year were remedied by the City. See id.
Further, during the 1997-1998 HEAP season, during a court-ordered review, the City informed the court that 125,106 New York City public assistance households with responsibility for their own heating costs received Code 41 loans, while only 453 such households received Code 80 grants. See id. The plaintiffs use the 1994-95 season error rate of 60.4% to estimate that 75,564 (125,106 * 0.604 = 75,564) households qualified for Code 80 grants erroneously received Code 41 loans. See id. In addition, the plaintiffs note that as recently as August 2, 2000, the State identified 260 New York City public assistance households which may have inappropriately received Code 41 loans, and the State instructed the City to review these cases. See id. at 18-19.
The plaintiffs' math is, frankly, a bit mystifying. Specifically, it is unclear how the 60.4% error rate number was obtained. The plaintiffs state that "873 households submitted heat-related utility disconnect notices to the City Agency. of those, only 79 households received `Code 80' emergency HEAP benefits. Upon review of these issuances, the City Agency reported that 422 households (60.4%) erroneously received `Code 41' state-funded loans instead of `Code 80' emergency HEAP benefits." Id. It would seem, then, that the error rate would be obtained by dividing the number of households where errors were made (422) by the total number of households requiring service (873) and then multiplying by 100. This calculation results in an error rate of 48.3%, which, in turn, yields an estimated total of 60,426 (125,106 * 0.483 = 60,426) households that qualified for Code 80 benefits but received Code 41 loans during the 1997-98 HEAP season. It is possible, of course, that the plaintiffs' calculation was based on other numbers not presented to the court. Regardless of which number is right, the number alleged would be sufficient to satisfy the numerosity requirement.
According to the plaintiffs, the State, by correspondence dated July 13, 2000, advised the City Agency that the latter systematically fails to advise staff to look to HEAP benefits in order to meet the emergency heating needs of public assistance households prior to resorting to benefits in other categories, such as Code 41. See id. at 19. The State instructed the City to amend its policies and procedures accordingly.See id. at 19.
Considering estimates obtained on the basis of available numbers and considering the alleged systemically inadequate nature of the City's policy, the plaintiffs reasonably suggest that the contemplated class size is large enough that joinder of all class members would be impracticable, especially considering the indigent status and geographical dispersal throughout the five boroughs of New York City of many of the proposed class members. See id. at 20.
The State's sole response is that the numbers the plaintiffs rely on do not demonstrate how many of the 422 cases the plaintiffs claim as instances of erroneous distribution of Code 41 loans instead of Code 80 grants during the 1994-95 season were actually instances in which the households in question did not apply for HEAP benefits. Def. Wing's Mem. Law Opp. Pl.'s Mot. for Prelim. Inj. and Class Cert. [hereinafter "State's Mem."] at 30. "[A]bsent an emergency HEAP application by an otherwise eligible individual," the State contends, "there is no requirement in the Federal HEAP statute that the State or City Agency must first consider HEAP emergency energy assistance funds to resolve an energy crisis." Id.
However, the plaintiffs counter by noting that Bruce Bowdy, the State's own HEAP coordinator, testified during a November 30, 2000 deposition that the claimant in need of emergency heating services does not have to apply specifically for the HEAP program but need only state that he has a heating emergency and that it is then the duty of the City Agency to determine for what kind of benefits he may be eligible. Pl.'s Reply at 5. In addition, the plaintiffs contend that it has been longstanding State policy not to require specific filing of a HEAP application in order to receive HEAP benefits. See id. at 5 n. 7. Considering that all factual disputes must be resolved in favor of the party seeking certification, the plaintiffs' version of the facts must be credited. Accordingly, the numerosity requirement is satisfied.
(b) Commonality
The commonality requirement is satisfied when the plaintiffs' grievances share common questions of law and fact. When common questions predominate, differences among the questions raised by individual members will not defeat commonality. See Shelter Realty Corp. v. Allied Maintenance Corp., 75 F.R.D. 34, 37 (S.D.N.Y. 1977); German, 885 F. Supp. at 554. "It is not necessary that each and every issue be raised by each and every member of the class or class representatives and a grouping of similar claims has generally been allowed." Vulcan Soc'y v. Fire Dep't, 82 F.R.D. 379, 401 (S.D.N.Y. 1979). Even a "a single common question has been sufficient to satisfy the commonality requirement."German, 885 F. Supp. at 554; Trief v. Dun Bradstreet Corp., 144 F.R.D. 193, 198 (S.D.N.Y. 1992); McCoy v. Ithaca Housing Authority, 559 F. Supp. 1351, 1355 (N.D.N.Y. 1983).
In Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997), for example, a class was certified where the common questions of law and fact involved claims that children who allegedly suffered severe abuse and neglect were being deprived of their rights under Federal and State statutes and constitutions by virtue of the mishandling of plaintiffs' cases by State and City child welfare officials. The defendants in that case raised the argument that "except at the grossest level of generality, there are no questions of law or fact common to the class and that no named plaintiff may convincingly assert that his or her claim is typical of the class."Id. at 376. "The defendants point out that each named plaintiff challenges a different aspect of the child welfare system." Id. "Further, the defendants note that no single plaintiff (named or otherwise) is affected by each and every legal violation alleged in the complaint, and that no single specific legal claim identified by the plaintiffs affects every member of the class." Id. at 377. In spite of these points, the Second Circuit invoked, with approval, the district court's arguments in favor of certification:
[The district court] identified as a common question of fact `whether defendants systematically have failed to provide these legally mandated services.' In characterizing the legal and factual issues in this way, the district court determined that the myriad constitutional, regulatory, and statutory provisions invoked by the plaintiffs are properly understood as creating a single scheme for the delivery of child welfare services and as setting standards of conduct for those charged with providing such services — standards that the defendants are alleged to have violated in a manner common to the plaintiff class by failing to operate and maintain a functioning child welfare system.Id. (citation omitted)
The issues raised by the plaintiffs in this case similarly revolve around claims of misadministration of a statutory scheme, here one designed to provide heating benefits to public assistance households, and just as in Marisol A, the fact that individual plaintiffs were not all mistreated in the exact same manner did not defeat commonality, the fact that the HEAP program may have been differently mismanaged with regard to each plaintiff does not stand in the way of certification.
Specifically, plaintiffs identify five issues of law and five questions of fact common to all class members. The alleged common questions of law are:
1. Is 42 U.S.C. § 8623(c) violated if the governmental provider of emergency HEAP benefits fails to provide some form of emergency energy assistance to New York City public assistance households within 18 to 48 hours of their request for emergency energy assistance to resolve a heat-related energy crisis?
2. Is the due process clause of the Fourteenth Amendment to the United States Constitution, 42 U.S.C. § 8624(b)(7)(A) and 18 NYCRR §§ 358-2.2 and 393.5(d) violated if the governmental provider of emergency HEAP benefits fails to provide timely and adequate written notice of emergency HEAP eligibility to public assistance households who seek heat-related emergency energy assistance?
3. Is 42 U.S.C. § 624(b)(2-4) violated if the governmental provider of emergency HEAP benefits fails to inform public assistance households confronting a heat-related energy crisis of the availability of such benefits?
4. Is 42 U.S.C. § 8624(b)(4-5) violated if the governmental provider of emergency HEAP benefits fails to ensure that eligible public assistance households receive emergency HEAP funds before dispensing the bulk of such funds to non-public assistance households of greater financial means?
5. Is New York Social Services Law 131-s violated when the governmental provider of emergency HEAP benefits issues a state-funded loan to a public assistance household to resolve a heat-related energy crisis instead of an emergency HEAP benefit?
Pl.'s Mot. at 21-22. The alleged common questions of fact are:
1. Does the City Defendant fail to provide some form of emergency energy assistance to New York City public assistance households within 18 to 48 hours of their request for emergency energy assistance to resolve a heat-related energy crisis?
2. Does the City Defendant fail to provide a timely and adequate notice of emergency HEAP eligibility to New York City public assistance households who request emergency energy assistance to resolve a heat-related energy crisis?
3. Does the City Defendant fail to inform New York City public assistance households confronting a heat-related energy crisis of the availability of emergency HEAP benefits?
4. Does the City Defendant reserve the bulk of emergency HEAP funds for non-public assistance households from whom the City Defendant cannot easily obtain repayment, and provide state-funded loans in lieu of emergency HEAP benefits to public assistance families from whom repayment is easily made by deducting future public assistance grants?
5. Is the State Defendant aware of these municipal practices and, if so, has the State Defendant failed to meet his supervisor responsibilities by tolerating them?Id. at 22-23.
The State bewails the plaintiffs' intimations that one implicit disposition contemplated by their formulation of the common issues of law and fact is a court order forcing defendants to issue determinations of emergency HEAP eligibility to all public assistance recipients within 18-48 hours of their request for heat-related energy assistance regardless of whether such households have made a specific application for Emergency HEAP benefits, as required by federal statute. State's Mem. at 31-32. But as has been noted above, the State's own HEAP coordinator testified that it is the City's duty to determine whether a given household qualifies for HEAP benefits whether or not a specific application for HEAP benefits has been filed. But even if it were assumed that the question whether or not the City has a duty to determine HEAP eligibility in every case is an open one, and not one which we must presume in favor of the plaintiffs for the purposes of this motion, common questions of law and fact would still exist. This question — whether or not the City has a duty to determine HEAP eligibility for every public assistance household in need of heating benefits — would simply be added to the list of common questions of law. Accordingly, common questions of law and fact exist, and the commonality requirement of Rule 23 is satisfied.
(c) Typicality
The typicality requirement is satisfied when the claims of the class representatives are typical of those in the class. It "is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability." In re Drexel Burnham Lambert, 960 F.2d 285, 291 (1992) (citing Eisen v. Carlisle Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968), vacated on other grounds, 417 U.S. 156, 94 S.Ct. 2140 (1974)); Marisol A, 126 F.3d at 376. Minor variations among individual plaintiffs' fact patterns do not undermine the typicality requirement. See Robidoux v. Celani, 987 F.2d 931, 936-37 (2d Cir. 1993).
Plaintiffs claim that the typicality requirement is met here because the claims of both the named plaintiffs and of the putative class "arise from the same illegal course of conduct."
Pl.'s Mot. at 24.
Plaintiffs and the putative class sought heat-related emergency energy assistance from City Defendant and were not provided with a timely municipal response to resolve their energy crisis, did not receive a timely and adequate written notice of emergency HEAP eligibility, and/or were issued a `Code 41' state-funded loan in lieu of a federally-funded `Code 80' emergency HEAP grant.Id. at 24. The State's sole response with respect to this issue is that "[i]n the absence of a system-wide policy affecting more than the individual cases alleged, plaintiffs fail to establish a need for certification of a city-wide class." Def.'s Mot. at 33. First of all, plaintiffs specifically allege that system-wide policies and practices do exist that result in similar mismanagement of thousands of cases, and it is to be assumed, for the purposes of this certification motion, that they will be able to prove their allegations. Second, the defendants do not actually contend that the claims of the plaintiffs here joined are not typical of those in the putative class. Consequently, the typicality requirement has been satisfied.
(d) Adequate Representation
In order to satisfy the adequate representation requirement, plaintiffs must show that the plaintiffs' attorney is "qualified, experienced and generally able to conduct the proposed litigation." Eisen, 391 F.2d at 562; Marisol A., 126 F.3d at 378; In re Drexel Burnham Lambert, 960 F.2d at 291. In addition, the class representatives must not have "interests antagonistic to those of the remainder of the class." Eisen, 391 F.2d at 562.
Plaintiffs contend that there is no conflict of interest either among themselves or between themselves and unnamed class members because all members are interested in the same kind of injunctive relief geared toward correcting the alleged current misadministration of the HEAP program. Pl.'s Mot. at 26. As for the competence of plaintiffs' counsel, he has characterized himself as "an experienced litigator with significant experience in representing impoverished clients in both individual and class actions." Id.
During his 15 year legal career, Peter Vollmer has represented indigent appellants at 250 administrative fair hearings and commenced 161 lawsuits in state and federal courts (including fifteen class actions) on behalf of impoverished clients who suffered the reduction or termination of their public entitlements without due process of law. of the 149 cases decided to date, his indigent clients prevailed in whole or in substantial part in 120 cases.Id. at 26-27.
In response, the State simply argues that "[g]iven the over breadth of the proposed class, it is unlikely that the named plaintiffs could fairly represent all plaintiffs that have alleged differing harms which will require individual remedies. No injunctive or declaratory relief will be appropriate for the entire putative class." State's Mem. at 34. This is an argument about the commonality of the plaintiffs' claims, not about adequacy of representation. Since defendants have raised no issue about the adequacy of either the class representative or class counsel, and since the court can think of no other reason to question the plaintiffs' assertions on this point, the adequacy of representation requirement is satisfied.
(2)
In addition to satisfying the strictures of Rule 23(a), a litigant seeking to certify a class must qualify for one of the three class categories described under Rule 23(b). The (23)(b)(2) category, the one relevant to this action, allows the certification of a class where "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed.R.Civ.P. 23(b)(2).
The plaintiffs contend that the (b)(2) category is appropriate "because defendants' misadministration of the emergency HEAP program in New York City as set forth above is `generally applicable to the class' as defined, and because final injunctive and declaratory relief is requested for the class as a whole." Pl.'s Mot. at 28; see also 7A C. Wright, A. Miller M. Kane, Federal Practice and Procedure, § 1775 at 447-48 (1986).
The defendants do not contest the plaintiffs' assertions in this regard and do not offer any reason why this class action would not be perfectly appropriate under 23(b)(2). However, they argue that class certification is simply unnecessary because a court "can fashion any relief granted in a manner that will have class-wide effect, thus making certification unnecessary and inappropriate." State's Mem. at 34. They argue, citingBerger v. Heckler, 771 F.2d 1556, 1566 (2d Cir. 1985), Galvan v. Levine, 490 F.2d 1255, 1261 (2d Cir. 1973) and Vulcan Soc'y v. Civil Serv. Comm'n., 490 F.2d 387, 399 (2d Cir. 1973), that "[t]he Second Circuit has held that a district court need not certify a class where class certification is largely a formality." State's Mem. at 34-35. The defendants quote the Galvin Court's pronouncement in this connection:
[I]nsofar as the relief sought is prohibitory, an action seeking declaratory and injunctive relief against state officials on the ground of unconstitutionality of a statute or administrative practice is the archetype of one where class action designation is largely a formality, at least for the plaintiffs. . . . [W]hat is important in such a case for the plaintiffs, or more accurately, for their counsel, is that the judgment run to the benefit not only of the named plaintiffs but of all others similarly situated.Galvan, 490 F.2d at 1261 (emphasis in original).
However, as plaintiffs point out in their reply, Galvan and its progeny stand for a very narrow principle. See Pl.'s Reply at 8-9. In Galvan, plaintiffs challenged the constitutionality of a state labor statute and an administrative policy which denied unemployment insurance benefits to certain seasonal workers. The court preliminarily denied class certification with leave to renew. After summary judgment was granted to the plaintiffs on their claims, they again moved to certify a class. The district court denied their motion, and the Second Circuit affirmed, writing that "[t]he State has made clear that it understands the judgment to bind it with respect to all claimants; indeed even before entry of the judgment, it withdrew the challenged policy even more fully than the court ultimately directed and stated it did not intend to reinstate the policy." Id. at 1261. Thus, Galvan was decided on a very particular fact pattern, where the State had made a promise to go above and beyond the scope of a court order and represented that it did not intend to reinstate the challenged policy.
But, as the plaintiffs go on to maintain, "[o]ver the last 25 years . . ., federal courts in New York have routinely departed from Galvan when `State and City defendants have not given the type of assurance that was given in Galvan. . . .'" Pl.'s Reply at 9 (quoting Henrietta D. v. Giuliani, 1996 U.S.Dist. LEXIS 22373 (E.D.N.Y. 1996); see also Ashe v. Bd. of Elections in the City of New York, 124 F.R.D. 45, 51 (noting that while defendants claim that class certification is unnecessary, "with the same breath, defendants contest the commonality of questions of fact and law presented by plaintiff's allegations of class injury and the typicality of plaintiff's claims"); Loper v. New York City Police Dep't, 135 F.R.D. 81, 83 (S.D.N.Y. 1991) (finding Galvan to be inapplicable because defendant asserted that it "will consider itself bound with respect to all members of the class only after `all appeals have been exhausted,'" which would have resulted in possible criminal prosecution of some would-be class members during the pendency of the appeal); Bacon v. Toia, 437 F. Supp. 1371, 1383 n. 11 (S.D.N.Y. 1997) ("Here there has been no assurance by the state that its welfare officials will apply the court's judgment to all similarly situated persons, and in fact there is some uncertainty as to whether it would do so").
Here, defendants have provided absolutely no assurances that they intend to apply any possible injunctive relief the court might grant to the current plaintiffs to all similarly situated persons, and in fact, vigorously deny, in opposing plaintiffs' assertions of numerosity, commonality and typicality, that any significant number of such similarly situated persons exists. In such a case, anyone excluded from the current action would have to bring an independent action premised on stare decisis to enforce their rights, and especially where the similarly situated plaintiffs in question are in dire financial circumstances, certifying a class is the appropriate alternative. See, e.g., Morel v. Giuliani, 927 F. Supp. 622, 634 (S.D.N.Y. 1995); Jackson v. Foley, 156 F.R.D. 538, 544-45 (E.D.N.Y. 1994).
The plaintiffs also point to other exceptions to Galvan that apply in this case. For one thing, the Galvan Court stated explicitly that the holding of the case applies only "insofar as the relief sought is prohibitory" Galvan, 490 F.2d at 1261. The relief sought here is not merely prohibitory but would require affirmative reformulation of the City's HEAP program to assure that it will be in conformity with the law, and in Jane B. v. New York City Dep't of Soc. Serv., 117 F.R.D. 64, 72 (S.D.N.Y. 1987), where the district court faced an analogous situation, it concluded that Galvan did not apply.
Another exception to Galvan exists where there is a danger that the case may become moot with respect to the currently joined plaintiffs.See Monaco v. Stone, 187 F.R.D. 50, 63 (E.D.N.Y. 1999) ("This Court finds that plaintiff's interest in averting the possibility of this litigation becoming moot prior to a final resolution of the issues presented makes class certification more than an `empty formality' in this case"). Here, the case is in danger of being mooted due to the poor health of the joined plaintiffs. Four of the original named plaintiffs (Rosella Dunn, Dolores Bluemke, John Stevens and Cathleen York) died during the course of the litigation, and all of the four surviving plaintiffs suffer from a variety of potentially life-threatening illnesses. Pl.'s Reply at 12.
There are other exceptions to Galvan which may also apply to this case, see Pl.'s Reply at 13-15, but in light of what has already been said here, we are at the point where we would be engaged in a meaningless exercise of naming every conceivable difference between proverbial apples and oranges. Galvan is inapplicable, and the class action is certified pursuant to 23(b)(2).
(3)
While the City does not contest class certification, it does seek a reformulation of the class definition.
First, whereas the plaintiffs' proposed class definition refers to "[a]ll New York City public assistance households responsible for their own heating costs who sought . . . assistance," the City proposes to alter this to "[a]ll eligible New York City public assistance households. . ." City's State's Mem. of Law. Opp. Pl.'s Mot. for Prelim. Inj. and Class Cert. [hereinafter "City's Mem."] at 3 (emphasis added). The City requests this change because it would track the requirements of 42 U.S.C. § 8623(c), which requires the City to "provide some form of assistance that will resolve the energy crisis if such household is eligible to receive such benefits."
However, as the plaintiffs' note in their reply, while the modification would appear benign, it would serve to exclude all those who were determined to be ineligible for HEAP benefits by the City but "did not receive a written notice informing them of their purported ineligibility or of their right to a fair hearing." Pl.'s Reply at 16-17. In so reformulating the class, the City would avoid both the plaintiffs' federal due process claims and claims pursuant to 42 U.S.C. § 8624(b)(7)(A) and (13) and 18 N.Y.C.R.R. §§ 393.5(b)(1) and (c), statutes requiring notice of ineligibility and notice of the right to a fair hearing. Accordingly, the definition of the class remains as per the plaintiffs' formulation.
Second, whereas subparagraphs 1 and 2 of plaintiffs' proposed class definition currently refer to "emergency HEAP" benefits or eligibility, the City argues that the statutory language does not refer to "emergency HEAP" benefits or eligibility but simply requires the City to "provide some form of assistance that will resolve the energy crisis if such household is eligible to receive such benefits." 42 U.S.C. § 8623(c)(1) (2). The language of the class definition, the City insists, should, therefore, be changed to accommodate the text of the statute.
But, as the plaintiffs' maintain, the City's suggestion, viz. to use the phrase "some form of energy assistance" instead of "emergency HEAP," would actually serve to broaden unnecessarily the scope of the class to include households not duly notified of other forms of energy assistance the administration of which is not at issue in this litigation, Code 41 loans being an example. See Pl.'s Reply at 18. To avoid such confusion, the City's proposed change is rejected.
Third and finally, the City proposes that the third subparagraph of plaintiffs' proposed class definition, which currently addresses those who "received a state-funded loan pursuant to New York Social Services Law § 131-s to resolve the heat-related energy crisis without evaluation of eligibility for an emergency HEAP grant, and were compelled to repay such state funds" be amended to reflect the administrative remedies in place, namely, the requirement that the household finding itself in such a position must have requested a State fair hearing to challenge the repayment and received an unfavorable decision. See City's Mem. at 4.
Once again, the City's request would exclude from contemplation in this action all those who sought emergency assistance but were either not alerted to the existence of HEAP benefits or never received written notice of their fair hearing rights, and therefore, never exercised any such rights. Such persons are clearly at the core of the proposed action, and it would be inappropriate to narrow its scope to exclude them.
Conclusion
Having satisfied the 23(a) requirements of numerosity, commonality, typicality and adequate representation and having qualified in the 23(b)(2) class action category, the plaintiff class is certified, and the following class definition is adopted:
All New York City public assistance households responsible for their own heating costs who sought the assistance of the New York City Department of Social Services or one of its agents to resolve a heat-related energy emergency at any time since February 27, 1989 and
(1) did not receive an emergency HEAP benefit due to the City Agency's failure to inform them of the availability of such benefits, or
(2) failed to timely receive an emergency HEAP eligibility determination or assistance to resolve the energy emergency within 48 hours of request, or within 18 hours if under life-threatening circumstances, or
(3) received a state-funded loan pursuant to New York Social Services Law § 131-s to resolve the heat-related energy crisis without evaluation of eligibility for an emergency HEAP grant, and were compelled to repay such state funds.
SO ORDERED.