453 F.2d 548: Saverio Russo, Suing on Behalf of Himself and All Otherpersons Similarly Situated, and the Dependentsthereof, Plaintiffs-appellees, v. James Kirby, Commissioner of Social Services for Suffolkcounty, Defendant-appellant,chamber of Commerce of the United States of America,intervenor-appellant
United States Court of Appeals, Second Circuit. - 453 F.2d 548
Argued Nov. 19, 1971.Decided Dec. 27, 1971
Philip D. Tobin, New York City (Cohn, Glickstein, Lurie & Ostrin, New York City, on the brief), for plaintiffs-appellees.
Stanley S. Corwin, Greenport, N. Y. (George W. Percy, Jr., Suffolk County Atty., on the brief), for defendant-appellant.
Lawrence M. Cohen, Chicago, Ill. (Gerard C. Smetana, Chicago, Ill., Milton A. Smith, Otto F. Wenzler, Washington, D. C., Walsh & Frisch, New York City, on the brief), for intervenor-appellant.
Before MOORE, HAYS and MULLIGAN, Circuit Judges.
HAYS, Circuit Judge:
This is an appeal from a judgment of the United States District Court for the Eastern District of New York, which granted plaintiffs a preliminary injunction.
Plaintiffs, members of the Communications Workers of America residing in Suffolk County, have been on strike against the New York Telephone Company since July 14. At the outset of the strike strikers were granted welfare benefits if they were otherwise found eligible, as has been the practice in New York for many years. See Lascaris v. Wyman [I], 61 Misc.2d 212, 305 N.Y.S.2d 212 (Sup.Ct. Onondaga County 1969). Shortly thereafter, however, defendant interpreted recent amendments to Section 131 of the New York Social Services Law1 as prohibiting such benefits, refused to accept new welfare applications from strikers, and terminated the benefits of those who were already receiving them without, in most cases, any notice or opportunity for a hearing. Plaintiffs then brought this class action for declaratory and injunctive relief, alleging that defendant's conduct infringed on their federal rights in several respects. By memorandum of October 8 and order of October 14, 1971, the district court granted a preliminary injunction, and ordered defendant to make retroactive and future payments to all strikers without regard to whether their unemployment was caused by a strike, and without requiring security for repayment if the controversy were eventually to be decided against the claimants' contention. When defendant refused to comply, plaintiffs moved for an order adjudging defendant in civil contempt. The district court, without granting the relief requested, modified its previous order in certain respects not significant here.
1. It shall be the duty of social services officials, insofar as funds are available for that purpose, to provide adequately for those unable to maintain themselves, in accordance with the requirements of this article and other provisions of this chapter. They shall, whenever possible, administer such care, treatment and service as may restore such persons to a condition of self-support or self-care, and shall further give such service to those liable to become destitute as may prevent the necessity of their becoming public charges
Although most of the cases interpreting the critical words "arising under" have dealt with general federal question jurisdiction under Sec. 1331, their reasoning is applicable to Sec. 1337. See McFaddin Express, Inc. v. Adley Corp., 346 F.2d 424 (2d Cir. 1965), cert. denied, 382 U.S. 1026, 86 S.Ct. 643, 15 L.Ed.2d 539 (1966)