Reynolds v. Giuliani

1999 WL 9836 United States District Court, S.D. New York.
Lakisha REYNOLDS, et al., Plaintiffs, v.
Rudolph GIULIANI, et al., Defendants.
No. 98 Civ. 8877(WHP). | Jan. 7, 1999.
Attorneys and Law Firms
Rebecca L. Scharf, Welfare Law Center, Inc., New York, New York, for Plaintiffs.
Jonathan Pines, New York, New York, for the City Defendants.
William H. Bristow, III, Assistant Attorney General, New York, New York, for the State Defendants.
Opinion
MEMORANDUM AND ORDER
PAULEY, J.
*1 On December 21, 1998, this Court received an ex parte application from Mr. Posr A. Posr, executive director of an organization known as Pro Se Views, seeking permission to videotape and televise further courtroom proceedings in this civil action. Mr. Posr submitted a second ex parte application on December 22, 1998 requesting the same relief. Copies of both applications were promptly circulated to all counsel of record. On December 23, 1998, Mr. Posr and the parties were given an opportunity to be heard on this matter. For the following reasons, the application is denied.
Background
On December 16, 1998, plaintiffs commenced this action against the City of New York, Mayor Rudolph Giuliani and several other defendants challenging the procedures through which the City provides food stamps and other public assistance to needy individuals. The complaint seeks preliminary and permanent injunctive relief on behalf of a proposed class of all New York City residents

who have or will apply for such assistance. An evidentiary hearing concerning plaintiffs’ application for preliminary injunctive relief is scheduled to begin on January 14, 1999.
Discussion
Local Civil Rule 1.8 is entitled “Photographs, Radio, Recordings, Television” and states:
No one other than court officials engaged in the conduct of court business shall bring any camera, transmitter, receiver, portable telephone or recording device into any courthouse or its environs without written permission of a judge of that court. Environs as used in this rule shall include the entire United States Courthouse property, including all entrances to and exits from the buildings.
S.D.N.Y. Local R. 1.8 This Court has complete discretion to permit or reject television coverage of its proceedings. See Williams v. New York City Police Department, 1997 WL 361974, at *1 (S.D .N.Y.1997); Sigmon v. Parker Chapin Flattau & Klimpl, 937 F.Supp. 335, 336 (S.D.N.Y.1996); Katzman v. Victoria’s Secret Catalogue, 923 F.Supp. 580, 584–85 (S.D.N.Y.1996).
In his ex parte submissions to the Court, Mr. Posr avers that he successfully videotaped an oral argument before the United States Court of Appeals for the Second Circuit and caused that videotape to be televised on public television; that he is a member of a registered press organization; and that further proceedings in this action should be televised because they concern a matter of public importance.
When he appeared in open court on December 23, Mr. Posr conceded that he has never videotaped an evidentiary hearing or trial. In response to questioning by the Court, Mr. Posr described how he proposed to operate a camera and microphones in my courtroom. Mr. Posr explained that he would stand behind a single camera and manually operate it in the well of the courtroom directly across from the witness box. A microphone would be placed at the judge’s bench, at the witness stand and at the attorney’s podium.
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Reynolds v. Giuliani
*2 On further questioning by the Court, Mr. Posr explained that employing only one camera, he would pan from counsel at the podium, to the witness on the stand, and ultimately to the bench—depending on who was speaking. The distance from the witness stand to where Mr. Posr would operate his camera manually is only approximately 16 feet. From that vantage point (which incidently is exactly where a law clerk typically sits), Mr. Posr would be required to pan his camera nearly 180 degrees as he alternately focused on the judge, the witness and counsel—a task akin to videotaping a tennis match from mid-court.
Counsel for the New York City defendants oppose Mr. Posr’s application. In a letter to the Court dated December 30, 1998, the City defendants state that Mr. Posr’s efforts to videotape the upcoming evidentiary hearing and any subsequent proceedings could prove distracting to witnesses and counsel. The Court agrees. Plaintiffs’

counsel has intimated that her clients are unhappy with the prospect of having to testify about their plights on public television.
Conclusion
Mr. Posr’s admitted inexperience in videotaping trial court proceedings, coupled with the physical dimensions and spacial constraints of my courtroom, dictate that his application be denied. Mr. Posr’s presence would be exceedingly conspicuous and unduly distracting. Given the intrusive way in which Mr. Posr plans to station himself in the courtroom, the Court is concerned that the video camera and its operator will disturb the dynamics of the hearing. Accordingly, Mr. Posr’s application is denied.

2

 
 Reynolds v. Giuliani

1999 WL 33027 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Lakisha REYNOLDS, et al., Plaintiffs, v.
Rudolph GIULIANI, et al., Defendants.
No. 98 Civ. 8877 WHP. | Jan. 21, 1999.
Attorneys and Law Firms
Marc Cohan, Rebecca L. Scharf, Welfare Law Center, Inc., New York, New York, for Plaintiffs.
Hwan–Hui Helen Lee, the Legal Aid Society, New York, New York, for Plaintiffs.
Mary Ellen Burns, Northern Manhattan Improvement Corp., New York, New York, for Plaintiffs.
Jonathan Pines, Assistant Corporation Counsel, New York, New York, for the City Defendants.
Vincent Leung, Assistant Attorney General, New York, New York, for the State Defendants.
Opinion

MEMORANDUM AND ORDER

PAULEY, J.

*1 By letter memorandum dated January 19, 1999, the City defendants move for an order, pursuant to

Fed.R.Evid. 402 and 403, precluding the introduction of a declaration by Adrienne L. Holder (the “Holder declaration”) and a draft report prepared by the United States Department of Agriculture (the “USDA Report”)1 in connection with the hearing on plaintiffs’ application for preliminary injunctive relief scheduled to begin on

January 20, 1999. In addition, the City defendants seek to preclude two federal officials from testifying at the hearing concerning their review of the City’s Food Stamp and Medicaid programs. Those officials are Sue Kelly (“Kelly”) of the Health Care Finance Administration and Mary A. Ferris (“Ferris”) of the United States Food and

Consumer Service.

1

The Report is titled “New York Program Access

Review November–December 1998” revised January 8,

1999.
By letter memorandum also dated January 19, 1999, plaintiffs stipulate that they will not proffer the Holder declaration as evidence at the hearing. Plaintiffs also state that Ferris’ testimony would be unnecessary if the USDA Report is admitted into evidence. Plaintiffs oppose the City defendants’ motion in all other respects.
The Court has reviewed the USDA Report. It should be noted that by memorandum and order dated January 15, 1999, this Court directed the City defendants to produce the USDA Report to plaintiffs, and thereby overruled the City defendants’ objections of inter-governmental and deliberative process privileges.
The City defendants’ present application to preclude its introduction at the hearing is denied. In view of the plaintiffs’ stipulation, Ferris will not testify at the hearing. The City defendants’ motion to preclude Kelly’s testimony is denied.
Discussion
1. The USDA Report Fed.R.Evid. 803 provides, in relevant part:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
... (8) Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... (C) in civil actions and proceedings ... factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
Fed.R.Evid. 803(8). “This rule is premised on the assumption that public officials perform their duties properly without motive or interest other than to submit accurate and fair reports.” Bradford Trust Co. v. Merrill Lynch Pierce, Fenner and Smith, Inc., 805 F.2d 49, 54 (2d Cir.1986).
The City defendants do not (and apparently cannot) dispute that the USDA Report sets forth “factual findings resulting from an investigation made pursuant to authority granted by law....” Fed.R.Evid. 803(8)(C). Instead, the
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Reynolds v. Giuliani
City defendants argue that the Report should be excluded because it lacks sufficient indicia of trustworthiness, and because its probative value is substantially outweighed by considerations of unfair prejudice and confusion. The City defendants also claim that introduction of the Report will upset the “candid exchange of opinions and information” among the USDA, City and State. See Defs.’ Letter Mem. at 3.
*2 “To exclude evidence which technically falls under 803(8)(C) there must be ‘an affirmative showing of untrustworthiness, beyond the obvious fact that the declarant is not in court to testify.” ’ Bradford Trust, 805 F.2d at 54 (quoting Kehm v. Proctor & Gamble Manufacturing Co., 724 F.2d 613, 618 (8th Cir.1983)). Four nonexclusive factors have traditionally been applied by courts in determining whether a report sought to be introduced under Rule 803(8)(C) is untrustworthy. These factors are: “(1) the timeliness of the investigation; (2) the investigator’s skill or experience; (3) whether a hearing was held; and (4) possible bias when reports are prepared with a view to possible litigation.” Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 167n. 11, 109 S.Ct. 439, 449n.11 (1988) (citing Advisory Committee’s Notes on Fed.R.Evid. 803(8)). In Gentile v. County of Suffolk, 129 F.R.D. 435 (E.D.N.Y.1990), aff’d, 926 F.2d 142 (2d Cir.1991), District Judge Weinstein added a fifth factor to this list: the finality of the findings. See Gentile, 129 F.R.D. at 450.
“As with any exception to the rule against hearsay, Rule 803(8)(C) is to be applied in a commonsense manner, subject to the district court’s sound exercise of discretion in determining whether the hearsay document offered in evidence has sufficient independent indicia of reliability to justify its admission.” City of New York v. Pullman Inc., 662 F.2d 910, 914 (2d Cir.1981).
Applying the foregoing factors, the Court does not find the USDA Report to be untrustworthy. Rather, it is extremely timely and the apparent expertise, knowledge and methodology of the federal agency that prepared it all

weigh in favor of its admissibility. The fact that the Report is non-final does not render it untrustworthy. See Gentile, 129 F.R.D. at 458 (“in many instances non-final reports may be extremely useful and reliable so far as they go.”); Meriwether v. Coughlin, 879 F.2d 1037, 1039 (2d Cir.1989) (admitting into evidence the last page of an interim report). The City defendants are free to challenge the accuracy of the Report’s findings at the hearing.
Turning to the City defendants’ other objections, the Court finds that any “prejudice” to the City defendants based on ongoing federal and State agency reviews is outweighed by the plaintiffs’ need for the information in the Report. The City defendants’ arguments under Fed.R.Evid. 403 are rejected. The Court is confident that during the hearing, it can hear relevant evidence, weigh its probative value and reject improper inferences that could arise from the inclusion of any prejudicial matter. See generally United States v. Zuber, 118 F.3d 101, 104 (2d Cir.1997) (“We traditionally assume that judges, unlike juries, are not prejudiced by impermissible factors ...”).
2. The Testimony Of Sue Kelly The City defendants offer no compelling reason to exclude the testimony of Ms. Kelly who, according to plaintiffs, has personal knowledge concerning the City defendants’ practices at issue here. Ms. Kelly will be permitted to testify.
Conclusion
*3 For the reasons set forth above, the City defendants’ motion in limine is denied.

2

 
 Reynolds v. Giuliani, 35 F.Supp.2d 331 (1999)

35 F.Supp.2d 331 United States District Court,
S.D. New York.
Lakisha REYNOLDS, et al., Plaintiffs, v.
Rudolph GIULIANI, et al., Defendants.
No. 98 Civ. 8877 WHP. | Jan. 25, 1999.
Qualified welfare beneficiaries brought § 1983 action against city and state officials, alleging that certain changes in food stamp and Medicaid procedures threatened to violate their federal rights. On motion for preliminary injunction prohibiting city from implementing changes, the District Court, Pauley, J., held that: (1) “likelihood of success” on the merits standard, rather than “serious question” standard or “clear likelihood of success” on the merits standard, applied to claims; (2) allegations were sufficient to state viable due process claim under § 1983; and (3) beneficiaries established threatened irreparable injury and likelihood of success on the merits, as required to warrant preliminary injunction.
Motion granted in part.
Attorneys and Law Firms
*333 Marc Cohan, Rebecca L. Scharf, New York City, NY, for plaintiffs.
Christopher D. Lamb, Hwan–Hui Helen Lee, Scott A. Rosenberg, The Legal Aid Society, New York City, NY, for plaintiffs.
Mary Ellen Burns, Northern Manhattan Improvement Corp., New York City, NY, for plaintiffs.
Jonathan Pines, Assistant Corporation Counsel, New York City, NY, for the City defendants.
James M. Hershler, Assistant Attorney General, New York City, NY, for the State defendants.
Opinion
MEMORANDUM AND ORDER

PAULEY, District Judge.

On December 16, 1998, plaintiffs Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas and Elston Richards (“plaintiffs”) filed this action under 42 U.S.C. § 1983 against New York City Mayor Rudolph Giuliani and Jason Turner, Commissioner of the New York City Human Resources Administration (the “City defendants”), together with Brian J. Wing, Commissioner of the New York State Office of Temporary and Disability Assistance, and Barbara DeBuono, Commissioner of the New York State Department of Health (the “State defendants”). The class action complaint alleges that the City systematically prevents otherwise eligible individuals from obtaining food stamps, Medicaid and cash assistance by, inter alia, imposing unreasonable requirements upon such individuals during the application process.

Plaintiffs seek preliminary and permanent injunctive relief on behalf of a proposed class of all New York City residents who have or will apply for food stamps, Medicaid and/or cash assistance. Presently before the Court is plaintiffs’ motion for a preliminary injunction.1 For the reasons below, plaintiffs’ motion is granted in part.

1

Given the parties’ request to conduct discovery

concerning the issues raised by the request for

preliminary injunctive relief and the need to determine

that application on an expedited basis, the Court

deferred consideration of plaintiffs’ request for class

certification with the consent of the parties.

PROCEDURAL HISTORY AND BACKGROUND
A. Introduction New York City’s Human Resources Administration (“HRA”) is the public agency charged with making food stamps, Medicaid and cash assistance available to needy individuals. At the present time, HRA is re-engineering the way in which its approximately 18,000 employees accomplish that mission. Until recently, HRA processed applications for food stamps, Medicaid and cash assistance at offices known as “Income Support Centers.” However, in March 1998 HRA began converting its 31 Income Support Centers to “Job Centers” in an effort to effectuate changes in federal and State welfare policy.
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Reynolds v. Giuliani, 35 F.Supp.2d 331 (1999)
Those policy changes unfolded with the enactment of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“PRWORA”). (See Smith Decl. ¶ 1; Lee Decl. ¶ 3.) PRWORA dramatically changed the climate for welfare programs in New York and around the country. Among other things, PRWORA ended the Aid to Families with Dependent Children (“AFDC”) program and replaced it with a block grant program known as the Temporary Assistance to Needy Families (“TANF”).
One of the express statutory purposes of TANF is to “end the dependence of needy parents on government benefits by promoting job preparation, work and marriage.” 42 U.S.C. § 601(a)(2). TANF contains several provisions meant to encourage cash assistance recipients to obtain paid employment. For example, TANF requires that non-exempt parents or caretakers engage in work activities no later than 24 months after receipt of assistance. See 42 U.S.C. § 602(a)(1)(A)(ii). TANF also establishes a 5–year lifetime limit on benefits, under the expectation that recipients will secure employment to support their children and themselves. See 42 U.S.C. § 608(a)(7). To ensure that States require recipients to work, *334 TANF includes escalating “work participation rates” that States must meet to avoid reductions in their block grants. See 42 U.S.C. § 607. New York participates in TANF through two cash assistance programs: Family Assistance, which is available to pregnant women and families with a minor child, and Safety Net Assistance, which is available to childless adults. See N.Y. Social Services Law §§ 158 and 349.
The City defendants maintain that the procedures utilized at job centers implement these policies by focusing on the employment opportunities and responsibilities of applicants, while assuring that assistance is available to those in need. (See Smith Decl. ¶¶ 2, 8.) HRA has already converted 14 of its 31 income support centers to job centers. HRA plans to complete the conversions by April 1999. (See Smith Decl. ¶ 5.)
Apart from providing cash assistance through the Family Assistance and Safety Net Assistance programs, HRA’s job centers are responsible for administering the federal food stamps and Medicaid programs. The following sections provide a brief overview of those programs.
1. The Food Stamp Program Congress established the federally funded, State-administered food stamp program in 1964 to “safeguard the health and well-being of the Nation’s

population by raising levels of nutrition among low-income households.” 7 U.S.C. § 2011. To be eligible for food stamps, a household’s net income must be equal to or below the federal poverty line, as defined in 42 U.S.C. § 9202(2), and its available financial resources may generally not exceed $2,000. See 7 U.S.C. §§ 2014(c), (g). New York participates in the food stamp program, and therefore is bound to comply with all applicable federal requirements. See generally Rothstein v. Wyman, 467 F.2d 226, 232 (2d Cir.1972).
Under the Food Stamp Act, a State agency is required to establish procedures governing the operation of food stamp offices that best serve households in the State. See 7 U.S.C. § 2020(e)(2)(A). In carrying out this mandate, a State agency must “provide timely, accurate, and fair service to applicants for, and participants in, the food stamp program.” See 7 U.S.C. § 2020(e)(2)(B)(i). A household is entitled to apply for food stamps on the first day it contacts a food stamp office during business hours. See 7 U.S.C. § 2020(e)(B)(iii). The State agency must provide eligible applicants that complete the initial application process with food stamps as soon as possible, but no later than 30 calendar days following the date the application was filed. See 7 U.S.C. § 2020(e)(3); 7 C.F.R. § 273.2(g).
2. “Expedited” Food Stamps Expedited issuance of food stamps is generally available to households with very little income and liquid resources, households whose housing costs exceed their income and liquid resources, and certain migrant and seasonal worker households. See 7 U.S.C. § 2020(e)(9)(A)(i)–(ii); 7 C.F.R. § 273.2(i)(1). If eligible, an applicant for expedited food stamps must receive them no later than seven days after the date of application. See 7 U.S.C. § 2020(e)(9). The State agency’s application procedures must be designed to identify households eligible for expedited service at the time the household requests assistance. See 7 C.F.R. § 273.2(i)(2).
3. Medicaid Medicaid, enacted in 1965 as Title XIX of the Social Security Act, see 42 U.S.C. § 1396 et seq., is a jointly financed federal-state program designed to provide medical assistance to those who lack sufficient income and resources to pay for health care. A State that choses to participate in the Medicaid program must implement a plan that complies with all applicable federal statutes and regulations.
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Reynolds v. Giuliani, 35 F.Supp.2d 331 (1999)
New York State participates in the Medicaid program by providing financial assistance for medical services for both the “categorically needy,” which includes the aged, blind, disabled and needy individuals with dependent children, as well as the “medically needy.” See 42 U.S.C. § 1396a(a)(10)(A), (C). Federal law generally requires that applications for Medicaid be processed and eligibility determined within 45 days, *335 42 C.F.R. § 435.911(a)(2), except where the applicant claims a disability, in which case the application must be processed in 90 days. See 42 C.F.R. § 435.911(a)(1).
B. Factual Background The following factual summary is derived from the parties submissions and is intended to provide background for the discussion that follows.
1. Application Process Under The Income Support System In the income support centers, any individual seeking public assistance is provided with a State-approved joint application form for food stamps, Medicaid, and cash assistance, together with screening forms for domestic violence and alcohol and substance abuse. (See Lee Decl. ¶ 8.) Such individuals may qualify for either the Family Assistance Program or Safety Net Assistance. (See Lee Decl. ¶ 8 n. 1.) During that visit, the application specialist registers the applicant and schedules appointments with Eligibility Verification and Review (“EVR”), the Office of Child Support Enforcement (“OCSE”), and the “I” interview. The “I” interview is the full application interview that generally takes place within five to seven days of the application date. However, if the applicant has emergency needs, the “I” interview will take place on the application date.
2. Application Process Under The Job Center System The application process at job centers is more rigorous. After an initial interview with a Financial Planning Unit Receptionist, the applicant is required to meet with a Financial Planner, an Employment Planner, a Social Services Planner, and to engage in extensive job search activities before the “I” interview.
On arrival at a job center, the applicant is screened by a receptionist who inquires as to the type of assistance sought and the applicant’s zip code. (See Smith Decl. ¶ 9.) The receptionist explains that cash assistance is now subject to a time limit, and that the applicant will be

required to seek employment during the application process. Then the receptionist provides the applicant with a Participant Job Profile and Assessment Form (“PJP”). Completion of the PJP triggers the application process.
After the applicant submits the completed PJP to a receptionist, a Financial Planning Unit Supervisor reviews the PJP, logs the applicant’s name into the Job Center Daily Activity Log, and assigns the applicant to a financial planner. While the applicant is waiting for his appointment with the financial planner, receptionists often make announcements informing applicants about the time limits for public assistance. (See Kahn Decl. ¶ 4; Smith Decl. ¶ 12.)
Applicants are registered in the Welfare Management System (“WMS”) on the day the PJP is completed. The agency’s timeliness in complying with federal and state mandates with regard to food stamps, Medicaid, and cash assistance applications is measured from the date the PJP is completed. (See Smith Decl. ¶ 12.) Thus, the formal application process under both the income support centers and the job centers begins on the first day that the applicant enters the office and completes the document required by that office. (See Smith Decl. ¶ 12.)
After completing the PJP, the applicant meets with a financial planner, who reviews the PJP and interviews the applicant to determine if any emergency needs requiring an immediate response are present. Applicants are customarily handed a form entitled “Information About an Expedited Food Stamp Interview.” Applicants are considered for expedited food stamps if they request an expedited food stamp interview on this form. (See Flaum Decl. ¶¶ 8, 22, 36, 49, 73, 83, 103.)
If there is an emergency need, the financial planner either determines the applicant’s eligibility for emergency benefits or arranges to have the applicant evaluated by an emergency assistance team or the Homeless Diversion Unit. (See Smith Decl. ¶ 20.) After any emergency is addressed, the financial planner explores whether there are any potential alternatives to cash assistance. These alternatives include whether the applicant has relatives who can assist him, access to bank accounts, or other possible sources of *336 government benefits, such as veterans’ benefits, pension, social security, and community services. In addition, the applicant is reminded about the time limits relating to cash assistance. (See Smith Decl. ¶ 16.) At the conclusion of this interview, the financial planner schedules the remaining appointments that the applicant is required to attend, including the Employment Planner interview, the Social Services interview, the “I” interview, and job search
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Reynolds v. Giuliani, 35 F.Supp.2d 331 (1999)

orientation activities.

After meeting with the financial planner, the applicant is interviewed by the employment planner. The employment planner is responsible for connecting the applicant with work activities. If the applicant is not exempt from work activities, then the applicant is immediately assigned job search activities.2 The employment planner reviews with the applicant a calendar called the “35/50 Days to Employment Calendar” which charts the appointments the applicant is expected to keep and outlines the steps that should be taken to search for and obtain employment. Following an orientation, daily job search activities are then scheduled over a six week period.

2

Applicants are not always immediately assigned to

conduct job search activities. For example, if an

applicant needs assistance in locating child care

services or help caring for a member of the applicant’s

family, a referral to the Social Services Planner might

be appropriate. Once these issues have been addressed,

the applicant proceeds to the job search phase

immediately.

At some point, after the job search orientation and while the applicant is still performing job search activities, the “I” interview is scheduled.3 Assuming the applicant has submitted all of the required paperwork and documentation and has appeared for all scheduled appointments, this is the phase where an eligibility determination is made. (See Smith at ¶ 42.)

3

Normally, the “I” interview is held within five working

days of the initial application date. Id. at ¶ 40.

When evaluating an applicant’s entire application, separate determinations should be made for each type of assistance requested. A separate determination is necessary because the requirements and standards under each program are different. For example, while work requirements exist for cash assistance, they do not affect eligibility for food stamps or Medicaid. If the applicant requests only food stamps and/or Medicaid, job center staff are required to give an immediate referral to a non-public assistance food stamp or Medicaid office. Income support centers and job centers are only authorized to process joint applications for food stamps and/or Medicaid in conjunction with a request for cash assistance. (See Smith Decl. ¶ 19.)

C. The Complaint Plaintiffs allege that the City defendants are providing

applicants with false and misleading information in an effort to prune the welfare rolls. Plaintiffs further allege that the City defendants are impermissibly raising impediments to applications by needy individuals for food stamps, Medicaid and cash assistance. Their 57–page complaint alleges twelve separate claims for relief. Plaintiffs’ first seven claims for relief assert private rights of action based on alleged violations of various federal statutes and regulations. Specifically, plaintiffs allege that:
• Defendants’ policies[ ] and practices of deterring, discouraging and preventing individuals and families from filing applications for food stamps benefits violate plaintiffs’ and plaintiff class members’ rights under 7 U.S.C. § 2020(e)(2); 7 C.F.R. §§ 273.2(c)(2), (6), (e)(1), (g); 272.5, 273.2(g); 273.10.
• Defendants’ policies[ ] and practices of deterring, discouraging and preventing individuals and families from filing applications for expedited food stamps benefits violate plaintiffs’ and plaintiff class members’ rights under 7 U.S.C. § 2020(e)(9); 7 C.F.R. §§ 273.2(i)(2), (3).
• Defendants’ policies[ ] and practices of failing to determine plaintiffs’ eligibility for food stamps separate from their eligibility for cash assistance violate plaintiffs’ and plaintiff class members’ rights under 7 U.S.C. § 2014(b) and 7 C.F.R. §§ 273.2(j)(1)(iii) and 273.10(i).
*337 • Defendants’ policies[ ] and practices of failing to contact applicants who withdraw their food stamps applications to confirm the withdrawal and to advise them of their right to reapply at any time violates 7 C.F.R. §§ 273.2(c)(6), 273.10.
• Defendants’ policies[ ] and practices of deterring, discouraging and preventing individuals and families from filing applications for Medicaid benefits violate plaintiffs’ and plaintiff class members’ rights under 42 U.S.C. § 1396a(8); 42 C.F.R. §§ 435.905(a)(1)–(3), 435.906, 435.909, 435.913, 435.930.
• Defendants’ policies[ ] and practices of failing to determine an individual’s eligibility for Medicaid separate from their eligibility for cash assistance violate plaintiffs’ and plaintiff class members’ rights under 42 C.F.R. § 435.909.
• Defendants’ policies[ ] and practices of not sending notices to applicants who withdraw their Medicaid applications to confirm that those withdrawals are
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Reynolds v. Giuliani, 35 F.Supp.2d 331 (1999)
voluntary violates 42 C.F.R. § 435.913.
Compl. ¶¶ 255–61. Plaintiffs assert that these violations also support individual claims under 42 U.S.C. § 1983. The complaint further alleges violations of plaintiffs’ rights under State law, see Compl. ¶ 262, and asserts that the State defendants’ failure to adequately monitor the City’s administration of the food stamps and Medicaid programs violates plaintiffs’ rights under 7 U.S.C. § 2020 and 42 U.S.C. § 1396, respectively. See Compl. ¶¶ 265–66. The common thread running through all of plaintiffs’ claims is that defendants have and continue to violate plaintiffs’ federal due process rights.
D. Procedural History By order to show cause on December 16, 1998, plaintiffs sought a temporary restraining order: (1) enjoining the City defendants from converting any additional income support centers to job centers; and (2) directing the City defendants to expeditiously process the applications of the named plaintiffs. Following oral argument later that day, this Court entered a temporary restraining order directing the City to provide emergency food stamps and cash assistance to the named plaintiffs. This Court scheduled an evidentiary hearing for December 30, 1998.
On December 23, 1998, the parties sought to adjourn the hearing in order to conduct limited discovery. This Court granted that request, established an expedited discovery schedule, and adjourned the evidentiary hearing to January 14, 1999. The temporary restraining order was modified on consent to provide for an “informal intervention procedure” to address individual cases of exigent need for “expedited food stamps” and/or “emergency cash assistance.”
As the hearing date approached, the parties requested additional time to continue compromise negotiations in an effort to resolve the litigation. This Court granted that request and adjusted the discovery and pre-hearing briefing schedules to accommodate the parties’ needs. On January 14, 1999, the parties advised the Court that they were unsuccessful in their efforts to settle the action. The hearing date was rescheduled to January 20, 1999. Between January 15 and 19, this Court supervised discovery, issued memoranda and orders concerning various evidentiary privileges, and received the parties’ voluminous pre-hearing submissions.
The Court conducted an evidentiary hearing concerning plaintiffs’ application on January 20, 21 and 22, 1999, and heard testimony from 15 witnesses. The Court also received three volumes of exhibits and hundreds of pages

of deposition transcripts from the parties to supplement the record.

At the conclusion of the hearing, this Court announced

that it would render a decision on Monday, January 25, 1999. Following that announcement, plaintiffs sought a representation from City defendants that the City would not proceed with its planned conversion of the DeKalb

Income Support Center on January 25 until after the Court issued its decision. The City defendants refused to delay the conversion scheduled for Monday morning.4 Accordingly, the Court modified *338 its temporary restraining order to enjoin the City from converting any Income Support Centers on January 25, 1999. (See Hr’g

Tr. at 684.)

4

The City defendants previously put off that conversion

in order to adjourn the evidentiary hearing until January

20, 1999.

DISCUSSION
A. The Applicable Standard For Preliminary Injunctive Relief [1] A party seeking a preliminary injunction generally must establish “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam).
[2] “However, in a case in which ‘the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme,’ the injunction should be granted only if the moving party meets the more rigorous likelihood-of-success standard.” Bery v. City of New York, 97 F.3d 689, 694 (2d Cir.1996) (applying higher standard to motion to enjoin enforcement of city regulation prohibiting unlicensed public exhibits of visual art) (quoting Plaza Health Laboratories, Inc. v. Perales, 878 F.2d 577, 580 (2d Cir.1989)), cert. denied, 520 U.S. 1251, 117 S.Ct. 2408, 138 L.Ed.2d 174 (1997). See also Velazquez v. Legal Services Corporation, 164 F.3d 757, 764 (2d Cir.1999) (applying higher standard in action challenging the constitutionality of federal statute and regulations). “This exception reflects the idea that governmental policies implemented through presumptively reasoned democratic processes are entitled to a higher degree of deference and
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Reynolds v. Giuliani, 35 F.Supp.2d 331 (1999)
should not be enjoined lightly.” Able v. United States, 44 F.3d 128, 131 (2d Cir.1995).
[3] [4] An even higher standard may apply where the injunction provides the movant with “substantially all the relief sought.” Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir.1996) (quoting Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 33–34 (2d Cir.1995)). In that instance, the moving party must make a “clear” or “substantial” showing of a likelihood of success. See Doherty, 60 F.3d at 34. As a final consideration, “[w]henever a request for a preliminary injunction implicates public interests, a court should give some consideration to the balance of such interests in deciding whether a plaintiff’s threatened irreparable injury and probability of success on the merits warrants injunctive relief.” Time Warner Cable of New York City v. Bloomberg L.P., 118 F.3d 917, 929 (2d Cir.1997).
[5] The City defendants argue that plaintiffs must establish a “clear likelihood of success on the merits to justify the extraordinary relief they seek” because “the public has a considerable interest in having the City meet the requirements of the Federal and State Welfare Reform Acts.” (Defs.’ Mem. at 55.) This Court declines to impose that heightened standard. However, it is appropriate to require plaintiffs to establish a “likelihood of success” on the merits because the injunction they seek intrudes on the City defendants’ ability to exercise their regulatory authority.
The Second Circuit has “offered differing views on the appropriate standard for the issuance of a preliminary injunction against governmental action.” Time Warner, 118 F.3d at 923. As the present application demonstrates, interpretation of the phrase “pursuant to a statutory or regulatory scheme” depends on where the challenged conduct is found along the continuum of governmental action.
At either extreme, a distinction may be drawn between injunctions directly challenging the enforcement of a statute or regulation from those only seeking the government’s compliance with them. For example, the plaintiffs in Able fell “squarely within the confines of th[e] exception” requiring application of the “likelihood of success” standard where they sought to overturn the federal statute and regulations implementing the military’s “Don’t Ask, Don’t Tell” policy. See Able, 44 F.3d at 131. Similarly, in Sweeney v. Bane, 996 F.2d 1384 (2d Cir.1993), the court approved the “likelihood of success” standard where plaintiffs attempted to enjoin the New York State Department of Social Services from implementing a 1992 amendment *339 to N.Y. Social

Services Law § 367–a(6). See also Union Carbide Agric. Prod. Co., Inc. v. Costle, 632 F.2d 1014, 1016 (2d Cir.1980) (Medicaid recipients and physicians sought to enjoin state agencies from implementing N.Y.Soc.Serv.Law § 365–a(5)); Medical Soc’y of the State of N.Y. v. Toia, 560 F.2d 535, 537 (2d Cir.1977) (producers of pesticide chemicals sought to enjoin enforcement of certain provisions of the Federal Insecticide, Fungicide, and Rodentocide Act).
In contrast, the court in Carey v. Klutznick, 637 F.2d 834 (2d Cir.1980), adopted the “serious questions” standard to an injunction directed at the methods adopted by the Census Bureau outside the applicable regulatory framework. See also Hudson River Sloop Clearwater, Inc. v. Department of the Navy, 836 F.2d 760 (2d Cir.1988) (applying “serious questions” standard in action brought by public interest groups and individuals to prohibit dredging and pier construction on Staten Island pending compliance with the National Environmental Policy Act); Time Warner, 118 F.3d at 923 (“serious questions” standard was appropriate where City’s action was proprietary in nature).
In one sense, the preliminary relief requested by plaintiffs seeks only to compel the City defendants’ compliance with federal and State law. For example, one branch of the preliminary injunction plaintiffs seek would direct defendants to “[p]rocess all applications for food stamps, Medicaid, and cash assistance including applications for expedited food stamps and temporary pre-investigation grants, within the time-frames required by law[.]” (Compl. at p. 53.) However, the plaintiffs also seek to enjoin the City defendants from converting any additional income support centers into job centers until the City makes a host of institutional reforms concerning how the City implements these programs. This aspect of the relief sought by plaintiffs warrants application of the “likelihood of success” standard.
With these considerations in mind, this Court declines plaintiffs’ invitation to invoke the narrow exception established in Haitian Ctrs. Council, Inc. v. McNary, 969 F.2d 1326 (2d Cir.1992), vacated as moot, 509 U.S. 918, 113 S.Ct. 3028, 125 L.Ed.2d 716 (1993), allowing that the “serious questions” standard may be appropriate where neither party “has an exclusive claim on the public interest.” Haitian Centers, 969 F.2d at 1339. Plaintiffs need not establish a “clear” or “substantial” likelihood of success because the injunctive relief they seek now will not “render a trial on the merits largely or partly meaningless ...” Doherty, 60 F.3d at 35. Instead, plaintiffs “need only make a showing that the probability of [their] prevailing is better than fifty percent. There may remain
6

Reynolds v. Giuliani, 35 F.Supp.2d 331 (1999)
considerable room for doubt.” Eng v. Smith, 849 F.2d 80, 82 (2d Cir.1988) (quoting Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir.1985)).
1. Irreparable Harm [6] Irreparable harm is “ ‘the single most important prerequisite for the issuance of a preliminary injunction.’ ” Bell & Howell: Mamiya Co. v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir.1983) (quoting 11 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure, § 2948 at 431 (1st ed.1973)). Accordingly, “the moving party must first demonstrate that such injury is likely before the other requirements for the issuance of an injunction will be considered.” Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904, 907 (2d Cir.1990).
[7] The Supreme Court has observed that denying welfare benefits to an eligible applicant may deprive that person “of the very means by which to live.” Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970). “To indigent persons, the loss of even a portion of subsistence benefits constitutes irreparable injury.” Morel v. Giuliani, 927 F.Supp. 622, 635 (S.D.N.Y.1995). See also Brown v. Giuliani, 158 F.R.D. 251, 264–65 (S.D.N.Y.1994).
Plaintiffs’ pre-hearing submissions and the evidence adduced at the hearing establish the risk of immediate and irreparable harm unless a preliminary injunction is issued. The City defendants’ practices continue to endanger numerous individuals in need of public assistance, including children, expectant mothers, and the disabled. This Court has received declarations and testimony describing in stark detail the hardships endured by *340 plaintiffs and other individuals who unsuccessfully sought public assistance at job centers. For example, plaintiff Lue Garlick, a homeless, single mother who is pregnant with twins, testified that she attempted to apply for emergency food stamps on November 16, 1998 at the Hamilton Job Center, but did not receive them until December 19, 1998. (Hr’g Tr. 11–12, 14, 22.) During that interim period, Ms. Garlick went entirely without food on more than one occasion. (Hr’g Tr. 14.) Other plaintiffs and witness described similar experiences. (See e.g., Smiley Decl. ¶¶ 14, 21; Reynolds Decl. ¶ 9; Bonilla Decl. ¶ 15; Cuevas Decl. ¶¶ 23–24; Richards Decl. ¶ 13.) Based on the record before this Court, there simply is no question that plaintiffs have established the risk of immediate and irreparable harm.
2. Likelihood of Success

As an initial matter, the City defendants argue that plaintiffs cannot prevail on their claims because they cannot maintain a private right of action under section 1983 to enforce provisions of the Food Stamp Act and the Medicaid Act.5 The State defendants have cross-moved to dismiss plaintiffs’ claims against them citing, inter alia, the Eleventh Amendment. For the reasons discussed below, the City defendants’ argument is rejected.6 Because no injunction is presently issuing against the State defendants,7 the Court declines to address the merits of the State defendants’ cross-motion at this time.8

5

In light of the Court’s ruling that plaintiffs have stated

claims under § 1983, the Court need not resolve the

analytically distinct issue of whether the statutes and

regulations on which plaintiffs rely can support private

rights of action independent of § 1983. See generally

Thompson v. Thompson, 484 U.S. 174, 108 S.Ct. 513,

98 L.Ed.2d 512 (1988). Compare Fay v. South Colonie

Central Sch. Dist., 802 F.2d 21 (2d Cir.1986) (finding

viable § 1983 claim but no private right of action) with

Haskins v. Stanton, 794 F.2d 1273 (7th Cir.1986)

(recognizing private right of action for violation of

Food Stamp Act); and Moore v. Perales, 692 F.Supp.

137 (E.D.N.Y.1988) (same).

6

The City defendants have not cross-moved to dismiss

plaintiffs’ claims against them.

7

At the close of the hearing, plaintiffs’ counsel conceded

that preliminary injunctive relief directed at the State

defendants may be premature. (See Hr’g Tr. 658–59.)

8

Nonetheless, the Court observes that official-capacity

actions seeking prospective injunctive relief for alleged

violations of federal law are not treated as actions

against the State. See Kentucky v. Graham, 473 U.S.

159, 167 n. 14, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d

114 (1985); Ex parte Young, 209 U.S. 123, 28 S.Ct.

441, 52 L.Ed. 714 (1908); Kostok v. Thomas, 105 F.3d

65, 68–69 (2d Cir.1997); Mont v. Heintz, 849 F.2d 704,

709–10 (2d Cir.1988).

[8] [9] [10] Section 1983 provides a cause of action against any person who, under color of state law, deprives another of “any rights, privileges or immunities secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983. “In order to seek redress through § 1983, however, a plaintiff must assert the violation of a federal right, not merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 1359, 137
7

Reynolds v. Giuliani, 35 F.Supp.2d 331 (1999)
L.Ed.2d 569 (1997). “To determine whether a private right of action exists under a federal statute, a plaintiff must show that the statute is: (1) ‘intended to benefit’ the plaintiff seeking to enforce it; (2) a ‘binding obligation on the governmental unit,’ rather than ‘merely a congressional preference for a certain kind of conduct’; and (3) not so ‘vague and amorphous’ as to be ‘beyond the competence of the judiciary to enforce.’ ” Rodriguez v. DeBuono, 162 F.3d 56, 60 (2d Cir.1998) (quoting Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 509, 110 S.Ct. 2510, 2517, 110 L.Ed.2d 455 (1990)). “Even if a plaintiff demonstrates that a federal statute creates an individual right, there is only a rebuttable presumption that the right is enforceable under § 1983.” Blessing, 520 U.S. at 341, 117 S.Ct. at 1360.
As summarized above, supra, pp. 339–40, the complaint purports to allege claims based on violations of a number of federal statutes and regulations. The provisions upon which plaintiffs rely are quite different than the statute that the Supreme Court analyzed in Blessing. Here, plaintiffs have identified several specific provisions of the Food Stamp Act which Congress undoubtedly intended to benefit individuals such as the plaintiffs, and *341 which impose unambiguous obligations on participating State agencies. See 7 U.S.C. § 2020(e)(2)(B) (“a State agency—(i) shall provide timely, accurate, and fair service to applicants for, and participants in, the food stamp program; (ii) shall develop an application containing the information necessary to comply with this chapter; (iii) shall permit an applicant household to apply to participate in the program on the same day that the household first contacts a food stamp office in person during office hours; (iv) shall consider an application that contains the name, address, and signature of the applicant to be filed on the date the applicant submits the application ...”); 7 U.S.C. § 2020(e)(3) (“the State agency shall thereafter promptly determine the eligibility of each applicant household so as to complete certification of and provide an allotment retroactive to the period of application to any eligible household not later than thirty days following its filing of an application ...”); 7 U.S.C. § 2020(e)(9) (“the State agency shall—(A) provide coupons no later than 7 days after the date of application to any [eligible] household ...”) Courts have held similar provisions of the Food Stamp Act enforceable under § 1983. See Gonzalez v. Pingree, 821 F.2d 1526, 1528 (11th Cir.1987); Victorian v. Miller, 813 F.2d 718 (5th Cir.1987) (en banc ); see also Robidoux v. Celani, 987 F.2d 931 (2d Cir.1993) (reinstating § 1983 claims alleging unlawful delay in processing of food stamps application and determining eligibility).
[11] Although the issue is novel in this circuit, it is equally

clear that plaintiffs have a federal right to “reasonably prompt[ ]” Medicaid assistance under 42 U.S.C. § 1396a(a)(8). Other courts have held that § 1396a(a)(8) creates a statutory right that may be enforced pursuant to 42 U.S.C. § 1983. See Doe v. Chiles, 136 F.3d 709 (11th Cir.1998); Sobky v. Smoley, 855 F.Supp. 1123, 1146–47 (E.D.Cal.1994); Wellington v. District of Columbia, 851 F.Supp. 1, 5 (D.D.C.1994); compare Graus v. Kaladjian, 2 F.Supp.2d 540, 543 (S.D.N.Y.1998) (no enforceable § 1983 rights are created by § 1396a(a)(1), § 1396a(a)(5), 42 C.F.R. § 435.930(b) or § 431.10—“Not every rule creates a right ... § 1983 does not authorize indiscriminate private enforcement of the vast universe of federal regulations but extends such enforcement only to those regulations that further define the substance of a statutory (or constitutional) provision that itself creates an enforceable right.”).

[12] [13] Plaintiffs also have an overarching property interest in their continued receipt of food stamps, Medicaid and cash assistance. See Goldberg, 397 U.S. at 261–66, 90 S.Ct. at 1016–20; Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 1162–63, 25 L.Ed.2d 491 (1970); Morel, 927 F.Supp. at 631–32. Plaintiffs’ allegations concerning various practices at job centers, such as providing false or misleading information to applicants about their eligibility, arbitrarily denying benefits to eligible individuals, and failing to provide notice of hearing rights, state a viable due process claim under § 1983.9

9

Exhaustion of state administrative remedies is

unnecessary. See Wilbur v. Harris, 53 F.3d 542, 544

(2d Cir.1995); Jose P. v. Ambach, 669 F.2d 865 (2d

Cir.1982).

[14] Turning to the facts, plaintiffs have also met their burden of establishing a likelihood of success on these claims. On March 31, 1998, the City opened its first job center as a test bed so that City officials could make ongoing modifications and expand the program incrementally. (Hr’g Tr. 386–87.) As Jason Turner, New York City’s Human Resources Administration’s Commissioner, observed: “[W]e didn’t do lengthy planning followed by implementation, instead, we acted first and worried about the consequences later. And that seems to have worked for us.” (Hr’g Tr. 387.) Commissioner Turner acknowledged that errors are inevitable and added that the benefit of proceeding incrementally is the avoidance of “rolling out a major mistake on a city-wide basis.” (Hr’g Tr. 388.)
The evidence presented by plaintiffs in their motion for preliminary relief, as well as the candid assessments of
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Reynolds v. Giuliani, 35 F.Supp.2d 331 (1999)

certain City officials, including Commissioner Turner and other high-ranking HRA deputies, demonstrates that additional self-study is necessary to ensure that the City’s vision of job centers *342 as a “beautiful system of engagement” and the enthusiasm of HRA employees for workfare do not obscure the underlying statutory requirement to protect the health and well-being of the neediest households in the population. (Hr’g Tr. 392.)

To the extent that the City has learned from its mistakes in rolling out job centers, the efforts to correct them and modify procedures appear to have been ad hoc. Indeed, the City first offered a host of revised procedures, policy directives and application forms only after the evidentiary hearing commenced. (See Defs.’ Exhibit D.) According to the testimony, the majority of those revised documents were created just days before the hearing. (Hr’g Tr. 281.) Moreover, those proposed policy changes continue to be subject to review by counsel and outside agencies charged with regulatory oversight of the food stamp, Medicaid and cash assistance programs in New York City. They could fairly be characterized as a work-in-progress.

There is no question that this litigation focused the City’s attention on problems in the day-to-day operations of the job centers. This Court is impressed by the conscientiousness of Commissioner Turner and his deputies in their efforts to modify policies and procedures in the job centers. There is considerable reason to be optimistic about the transition from income support centers to job centers given that staff there seem to be open to reform and are particularly enthusiastic about helping applicants find jobs. (Pls.’ Ex. 30 at iv.)

The City of New York is entitled to implement a policy

that promotes work and self-reliance rather than

dependency. In its quest to enhance the delivery of food

stamps, Medicaid and cash assistance benefits to the

City’s most needy residents, the City cannot lose sight of

the requirements imposed by federal statutes and

regulations. Because some of the City’s neediest residents

January 25, 1999

—

February 1, 1999

—

February 8, 1999

—

February 16, 1999

—

March 1, 1999

—

March 8, 1999

—

continue to fall through the safety net at job centers, this Court is impelled to ensure that remedial steps are taken on a specified time-line and that the effects of the revisions to job center procedures are measured to ascertain whether they are working.
As already stated, the conversion of income support centers to job centers began with the Greenwood Job Center on March 31, 1998. That center was selected to start the conversions because of the professional staff employed there. The staff at Greenwood had been specifically recruited because of their strong interest in “moving families to self-sufficiency” by helping them find jobs. (Hr’g Tr. at 271.) Following a three-week trial run in Greenwood, the City converted its income support center in Jamaica to a job center on April 20. Two more income support centers were converted on July 1, 1998, Queens and Richmond. During the balance of 1998, nine additional income support centers were converted as follows: August 31, Hamilton, Dyckman and Bushwick; November 16, Tremont and Crotona; November 30, Bay Ridge; and December 14, East Harlem, Concourse and Linden/Prospect. In addition, on August 31, 1998, the Yorkville Job Center was opened. (See Stipulated Facts ¶¶ 14 and 15.)
Originally, the City planned to convert the DeKalb and Brownsville income support centers to job centers during the week of January 4, 1999. However, the City agreed to delay those conversions in order to accommodate the parties’ desire to adjourn the preliminary injunction hearing. At trial, Commissioner Turner conceded that delays in the construction schedule made it impossible to convert those job centers prior to January 25, 1999. The parties have stipulated that the City intends to convert its remaining income support centers to job centers no earlier than the following dates:
DeKalb
Brownsville
Bergen/Willis
Waverly
Fulton and Clinton
Fordham
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Reynolds v. Giuliani, 35 F.Supp.2d 331 (1999)

March 15, 1999 March 29, 1999 April 2, 1999 April 5, 1999 April 10, 1999 April 26, 1999

— St. Nicholas — Euclid — Kingsbridge/Melrose — Rider — Queensboro — East End

*343 In addition, the City intends to open the Riverview Job Center no earlier than March 15, 1999. Commissioner Turner acknowledged that the schedule could be delayed for several weeks without any harm to the City. (Hr’g Tr. at 428.) In addition, the retraining of staff will take approximately two to three weeks. (Hr’g Tr. at 417.) At the hearing, the most pressing concern identified by Commissioner Turner was interference with the construction schedule for the physical conversion of income support centers to job centers. (Hr’g Tr. at 427, 431.)
Effects of the Conversions Some of the data proffered by the plaintiffs suggests that after an income support center is converted to a job center, fewer applicants are approved for benefits. (Lee Decl. ¶ 4.) For example, during the first four weeks of the operation of the Jamaica Job Center, 84% of the individuals seeking assistance were turned away without having filed an application for assistance. (Lee Decl. ¶ 5.) Based on the data presented at the hearing, a monthly average of 48.96% of all applicants were diverted from seeking assistance at the Jamaica Job Center. (See Pls.’ Ex. 54.) At the Greenwood Job Center, over 69% of the individuals seeking assistance left the center without filing an application. (Lee Decl. ¶ 6.) Furthermore, a study revealed that twenty-three percent and seventeen percent of the financial planners at the Jamaica and Greenwood Job Center respectively were actively attempting to discourage individuals from applying for assistance. (Pls.’ Ex. 30 at 11.) At the Jamaica Job Center, a staff member expressed concern that some financial planners were taking two to three hours to convince applicants to withdraw their applications. (Pls.’ Ex 30 at 12.) Staff at the Greenwood and Jamaica Job Centers

expressed the view that “while higher-ups said “Work First,”, they meant “Diversion First.” ” (Pls.’ Ex. 30 at 13.) “Overwhelmingly, job center staff thought that the goal of welfare reform was diversion.” Id.
The numbers were slightly lower at more recently converted centers. For example, the percentage of applicants diverted at the Tremont Job Center, which opened on November 16, 1998, was 34% the week of December 4, 1998, 31.6% the week of December 11, 1998, and 20.4% the week of December 18, 1998. (Pls.’ Ex. 48.) Similarly, at the Crotona Job Center, which opened on November 16, 1998, 22% of applicants were diverted from November 20 to December 18, 1998. (Pls.’ Ex. 49). Moreover, only 50% of individuals seeking assistance at the Crotona Job Center were seen by a financial planner. (Pls.’ Ex. 49.) Each week, between one-third and one-half of applicants seeking assistance at various job centers were diverted by the time they reached the financial planner. (See Pls.’ Exs. 42–52.) The numbers at other job centers, such as Dyckman and Queens are even higher; the percentage of applicants diverted is more than fifty percent. (See Pls.’ Ex. 43, 45.)
However, since conversion, the percentage of individuals who seek assistance but are not seen by a financial planner has increased. (Lee Reply Decl. ¶ 89.) The financial planner is crucial in the application process because it is the financial planner who determines if emergency needs requiring immediate attention are present. Most of the applicants seeking assistance were seen by financial planners at the Jamaica, Yorkville, Queens, and Greenwood Job Centers. However, at the Dyckman, Bayridge, Crotona, Hamilton, Bushwick, and Linden/Prospect Job Centers, the percentage of applicants who were not seen by a financial planner ranged from
10

Reynolds v. Giuliani, 35 F.Supp.2d 331 (1999)
25% to 60%. (See Pls.’ Ex. 42–53.) Without a financial planner interview, the agency is unable to immediately screen an applicant’s PJP to determine if emergency needs are present.10 10 The percentage of applicants seen by a financial
planner at the Dyckman, Bayridge, Crotona, Hamilton, Bushwick, and Linden/Prospect Centers were approximately 74%, 60%, 45%, 54%, 70%, 49% respectively.
The data further reveals that the number of pre-investigation emergency cash grants also declined in the wake of the conversion of income support centers to job centers. For example, while there were 51 immediate needs grants in the month before the conversation of the Greenwood Center, six months later there were only 36. Similarly, immediate *344 needs grants at the Queens Center fell from 43 in the month prior to conversion to 24 two months after conversion. At the Bushwick Center, immediate needs grants fell from 123 to 81, only one month after conversion. (Pls.’ Ex. 80.) When these numbers are calculated as a percentage of the persons applying for cash assistance, the numbers show a significant decline. For example, the percentage of applicants who received immediate needs grants fell from 13.3% before conversion to 8.8% one month after conversion in the Greenwood Center; from 12% to 5.3% in the Hamilton Center; 7.3% to 3.3% in the Queens Center; and 37.9% to 13.3% in the Bushwick Center. (Reply Decl. Lee ¶¶ 60–65, 114.)
There also appears to be a correlation between the conversion of income support centers to job centers and a decline in the number of applicants who receive expedited food stamps. At the Richmond Center, there was a 50% decline in the number of persons granted expedited food stamps after conversion to a job center. The statistics from other job centers reveal a similar pattern and are unexplained: Prior to conversion, 40.2% of applicants at Greenwood received expedited food stamps, while post-conversion the percentage dropped to 16%; at Hamilton, the percentages plummeted from 10.7% to 1.3%; at Queens, from 9.6% to 2.4%; and at Bushwick, from 42.4% to 16.7%. (Lee Decl. ¶¶ 60–65.)
Emergency Assistance Evidence at the hearing and plaintiffs’ declarations indicate that individuals with emergency needs often go without immediate assistance. The plaintiffs describe a number of incidents where applicants for expedited food stamps or emergency cash assistance are referred by job

center personnel to food pantries or soup kitchens. (Morgan Decl. ¶ 21–23; Stalzer Decl. ¶ 14.) Defendants claim that they only refer applicants seeking emergency assistance to food pantries to tide them over until their application for emergency assistance has been processed. However, when viewed in conjunction with the fact that plaintiffs are often not receiving expedited food stamps or pre-investigation cash grants within the seven day period mandated by statute, see 7 U.S.C. § 2020(e)(9), the evidence indicates that referrals to pantries are being used as a replacement for these expedited benefits. Carlos Rodriguez, an employee of the Tremont Community Council, observed at the hearing that the food pantry he supervises was overwhelmed by individuals seeking food with vouchers and/or referrals following the conversion of the Tremont income support center to a job center. (Hr’g Tr. 79–81.) The Tremont Community Center has been forced to curtail the number of days it operates because demand far exceeds supply. (Hr’g Tr. 81–82, 86.)
The evidence presented at the hearing reveals that the training materials provided to financial planners as part of the conversion process do not describe the procedure for processing expedited foods stamps or emergency cash assistance. In fact, the “Job Center Work Flow Guide,” which is among the training materials provided to financial planners, does not even mention the title of the form for expedited food stamps. (Pls.’ Ex. 85, 86, 87.) Additionally, the training materials do not outline the obligation of job center staff to inform applicants that their application will be processed as long as it contains their name, address, and signature. Under 7 C.F.R. § 273.2, the “household shall be advised that it does not have to be interviewed before filing the application and may file an incomplete application form as long as the form contains the applicant’s name and address, and is signed by a responsible member of the household or the household’s authorized representative.” It appears that job center staff fail to convey this information to applicants.
Job center dispositions reflect the City’s efforts to document what is occurring at the job centers, particularly why individuals seeking assistance are leaving without completing an application. (Hr’g Tr. at 236.) These weekly charts indicate that some individuals seeking assistance were turned away because their spouse was not present at the time of their application. (Pls.’ Ex. 57 Bates Stamped 588; Lee Reply Decl. ¶ 81, 93 at 2.) In addition, some job center staff are also preventing individuals under the age of 21 *345 from applying for assistance. (Pls.’ Ex. 57; Stalzer Decl. ¶ 19; Williams–Kuhn Decl. ¶ 11.)
Plaintiffs’ documentary evidence reveals that applicants
11

Reynolds v. Giuliani, 35 F.Supp.2d 331 (1999)
with emergency needs are not being provided with expedited foods stamps within the seven day period imposed by federal law. (Reynolds Decl. ¶ 9; Smiley Decl. ¶¶ 14, 15, 19, 21; Landea Decl. ¶ 16; Cuevas Decl. ¶¶ 15–17; Calabrese Decl. ¶ 12; Coram Decl. ¶ 6; Perez Decl ¶ 8). At the hearing, City defendants stipulated that plaintiffs Lue Garlick, Adriana Calabrese, Elston Richards, and Georgina Bonilla indicated on their PJPs that they faced a food, shelter or utility emergency. (Hr’g Tr. 585.) Ms. Garlick requested emergency relief on November 23, 1998 when she completed the PJP. However, her application was not processed for expedited food stamps because she did not request an expedited food stamps interview on her “Information About an Expedited Food Stamp Interview” form. (Flaum Decl. ¶ 36.) Ms. Garlick did not discover that her application had been rejected until December 8, 1998, when she called the center. (Garlick Decl. ¶ 25.) Ms. Calabrese requested emergency relief on October 26, 1998, but on November 2, 1998 her application was denied because she failed to report for her “I” interview. (Flaum Decl. ¶ 99.) Ms. Calabrese requested emergency relief again on November 13, 1998 but this application was also denied because she had failed to report for her EVR interview in connection with her prior application. (Flaum Decl. ¶ 104.) Mr. Richards requested emergency relief on his PJP on December 1, 1998. In addition, he also requested an expedited food stamp interview. (Flaum Decl. ¶ 61.) However, he did not receive an appointment for an “I” interview until December 7, 1998. Id. Moreover, as of December 15, Mr. Richards had not received any expedited food stamps. Ms. Bonilla requested emergency relief on November 19, 1998 when she completed her PJP. However, because she did not request an interview on her “Information About an Expedited Food Stamp Interview” form, her application was not processed for expedited food stamps. (Flaum Decl. ¶ 22.)
Plaintiffs introduced evidence that applicants who arrive later in the day are told that they must return another weekday morning, regardless of their emergency needs. (Lee Decl. ¶ 17; Richard Decl ¶ 10; Morgan Decl. ¶ 9; Perez Decl. ¶ 5.) For example, at the Jamaica Job Center, “most people who come after 11:00 a.m. cannot be seen that day and are told to come back the next day.” (Pls.’ Ex. 30 at ii, 15–16.) Moreover, a study of the Greenwood Job Center found that the applicants that were turned away had their application logged in not on the day they came to the job center, but on the next business day. (Pls.’ Ex. 30 at ii, 16). Further, HRA’s Executive Deputy Commissioner, Patricia Smith conceded that she was “surprise[d]”, (Hr’g Tr. at 240), and “outrage[d]”, (Smith Dep. at 175) when her audit team reported to her in December 1998 that applicants arriving at mid-day were

turned away. (Hr’g Tr. 241–42.) The application logs disclosed that the last applicant for the day was routinely recorded as arriving at noon, and none were found later than 12:30 p.m. (Hr’g Tr. at 242, 244.)
The screening instrument currently in use at the job centers to assess emergency needs is the “Information About an Expedited Food Stamp Interview” form. (Pls.’ Ex. 28.) Often times, this form was not used on the date the applicant first contacted a job center. (Pls.’ Ex. 33 at 12.) Furthermore, many applicants are apparently confused by this form because it does not contain any place for them to check off enumerated criteria. (Lee Reply Decl. ¶ 47.) Consequently, many applicants fail to check off the box requesting an immediate expedited foods stamp interview, even though they told the financial planner that they did not have any food or money to buy food or that they were homeless as defined by the form. (Flaum Decl. ¶¶ 7–8, Smiley Decl. ¶ 14, 21; Reynolds Decl. ¶ 9.) However, 7 C.F.R. § 273.2(i)(2) requires the State agency to identify individuals eligible for expedited service at the time the individual requests assistance. The current language and format of the “Information About an Expedited Food Stamp Interview” form allows many otherwise eligible applicants for expedited food stamps to fall *346 through the cracks and not receive these essential benefits.
Missing Appointments The job center application process requires applicants to report to the center or at other appointments on every weekday of the 35 to 50 day application period. There is evidence to suggest that applicants are informed that if they miss even one day, they must start again at the beginning of the process. (Garlick Decl. ¶ 15; Smiley Decl. ¶ 20; Morgan Decl. ¶ 15–19; Williams–Kahn Decl. ¶ 15; King Decl. ¶ 7 (describing process at Linden Job Center); Cox Decl. ¶ 15 (describing process at Richmond Job Center); Hr’g Tr. 468.)
While City managerial staff asserted that eligibility for food stamps and Medicaid was not tied to eligibility for cash assistance with its attendant employment requirements, the evidence shows that they are frequently bundled together. At the hearing, the City offered Sylvia Gonzalez, a financial planner from the Linden Job Center, to describe her role in the application process. On cross-examination, Ms. Gonzalez conceded that if she received notice from an employment planner that an applicant had missed an appointment, she would “reject the case.” (Hr’g Tr. 468.) The following colloquy ensued:
Q. Reject the case. Which case would you reject?
12

Reynolds v. Giuliani, 35 F.Supp.2d 331 (1999)
Would their public assistance case be rejected?
A. The whole case. It’s a package deal.
Q. Would their food stamp case be rejected?
A. Yes.
Q. Would their Medicaid application be rejected?
A. Yes.
(Hr’g Tr. at 468.) This exchange underscores the need for clear instructions to financial planners and employment planners at job centers concerning eligibility for food stamps and Medicaid.
Notice Several plaintiffs did not receive notice of the denial of their applications for food stamps, Medicaid, and cash assistance. (Smiley Decl. ¶ 25.) The evidence adduced at the hearing reveals that many applicants are unable to avail themselves of their right to a hearing because many applications are denied without written notice to the applicant explaining the basis for that denial.
This Court is persuaded that the practices at a number of job centers result in the denial of applications without providing applicants with written notice of the reasons for that denial or informing the applicant of his or her right to request a fair hearing. See 7 C.F.R. § 273.2(c)(6); (Calabrese Decl. ¶ 13; Smiley Decl. ¶¶ 15–17; Richards Decl. ¶ 9.) City defendants acknowledge that if a financial planner reviews the PJP and the Form 2921 and determines that the applicant is ineligible, he informs the applicant orally and does not issue a written notice. (Thomas Dep. at 27–128, 130). In fact, timely notice usually is not given until the conclusion of the “I” interview, which typically occurs five to seven days after the application date. (Smith Decl. ¶¶ 14, 42.) Under the job center system, a failure to meet any one of a number of obligations during the application process can result in a denial of the applicant’s entire public assistance package. When the application is rejected before the “I” interview is conducted, ordinarily no written notice is provided.

Job Center). For example, at the hearing, Ms. Judith Bernstein, team leader for the New York City Region from the New York State Office of Temporary and Disability Assistance, agreed that the City has had continuing problems in accurately assessing food stamp eligibility. (Hr’g Tr. at 107–08.) In addition, Sue Kelly, Associate Regional Administrator at the federal Health Care Financing Administration (“HCFA”), expressed that her agency was concerned that many “eligible low-income children and adults were being exposed to additional barriers *347 when applying for Medicaid.” (Hr’g Tr. 354; Pls.’ Ex. 41.)
Of the six named plaintiffs whose case reports were submitted to the Court, five of those applications were denied because the applicant failed to report to a subsequent interview or simply failed to submit additional forms. (Flaum Decl. ¶ 16 (failure to submit childcare form), ¶ 46 (failure to submit additional documents to establish eligibility), ¶ 55 (failure to report for appointment interview), ¶ 78 (failure to report for orientation), ¶ 115 (failure to submit documentation that applicant had applied for unemployment benefits); Satterwhite Decl. ¶ 9.) In fact, some applicants are informed that every appointment is mandatory and that failure to keep an appointment will result in the denial of their application. They are further instructed that if a single day of job search is skipped, the entire process must be started all over again from the beginning. (Lee Decl. ¶¶ 38–41; Richards Decl. ¶¶ 3, 12; Stevens Decl. ¶ 10; Morgan Decl. ¶ 15; Burch Decl. ¶ 3–4; Stalzer Decl. ¶ 13; Kahn Decl. ¶ 15; King Decl. ¶ 7; Cox Decl. ¶ 15; Hr’g Tr. 468).
The evidence shows that applicants miss appointments through no fault of their own. For example, financial planners have neglected to mark important appointments like the “I” interview on calenders given to applicants because it was confusing the employment planners. Consequently, many applicants reported to Fed Cap, missing their “I” interviews, and being terminated as “Failure to Report” even though they were actively participating in the program. (Pls.’ Ex. 30 at iii, 23.) Other examples include circumstances where the applicant was terminated when he or she was actually actively participating in job interviews or otherwise involved in the job center process. (Pls.’ Ex. 30 at 23.)

Invalid Denials The record also discloses that job center staff denied food stamps and Medicaid applications for failure to submit certain forms and failure to comply with work rules. (Diamond Decl. ¶ 6) (describing practices at Hamilton

CONCLUSION
[15] PRWORA represents a legislative sea change in thinking about welfare. Reforming welfare in a large city
13

Reynolds v. Giuliani, 35 F.Supp.2d 331 (1999)
such as New York presents tremendous challenges. The City embarked on an ambitious plan to implement PRWORA and exercise its managerial prerogatives to redirect the needy from welfare to workfare. Despite this legitimate goal, this Court cannot ignore the evidence presented by plaintiffs concerning individuals whose urgent needs were overlooked by the City in the wake of this transition. The City defendants argue that these problems were isolated incidents that occurred at a few job centers, and are not indicative of a systemic violation. (Diamond Decl. ¶ 3.) At this stage of the litigation, this Court cannot agree.
While the City defendants have offered evidence that they are in the process of addressing some of the issues raised by plaintiffs’ motion, this Court finds that the plaintiffs and other applicants for food stamps, Medicaid and cash assistance will suffer irreparable harm if preliminary injunctive relief is not entered now. Accordingly, pursuant to Rule 65, the Court directs the following preliminary relief pending a further hearing in this matter:
1. The “informal intervention” process ordered by this Court on December 23, 1998 shall continue to be utilized to address individual cases of exigent need for expedited food stamps and/or emergency cash assistance; and
2. The City defendants are directed to allow plaintiffs and all persons applying for food stamps, Medicaid and cash assistance, including expedited food stamps and temporary pre-investigation grants to apply for such benefits on the first day that they visit a Job Center; and
3. The City defendants are directed to process all applications for expedited food stamps and temporary pre-investigation grants at Job Centers within the time frames required by law; and
4. The City defendants are directed to make eligibility determinations regarding food stamps and Medicaid applications at Job Centers separate from the eligibility determinations regarding cash assistance applications; and
5. The City defendants are directed to send plaintiffs and all persons applying for food stamps, Medicaid and cash assistance, including expedited food stamps and temporary pre-investigation grants at Job Centers timely and adequate *348 written notice of determinations of their eligibility for all benefits which they seek; and
6. The City defendants are preliminarily enjoined

from converting any Income Support Centers to Job Centers or opening any new Job Centers pending a hearing and determination on the adequacy of a corrective plan of training and procedures for all HRA personnel at existing Job Centers and at Income Support Centers scheduled for conversion to Job Centers who have contact with applicants for food stamps, Medicaid or cash assistance. The corrective plan of training and procedures shall address, inter alia:
a. Procedures to permit applicants to file an application for food stamps, Medicaid or cash assistance on the first day of contact with a Job Center.
b. Procedures for separate determinations on an applicant’s request for food stamps, Medicaid and cash assistance.
c. Procedures for processing applications for expedited food stamps within seven days from the date the application is submitted.
d. Procedures for processing applications for pre-investigation immediate needs cash assistance in a manner consistent with State law.
e. Procedures for processing applications for food stamps and/or Medicaid where applicants fail to comply with work requirements.
f. Procedures for providing written notice to applicants denied food stamps, Medicaid and/or cash assistance together with the basis for those denials and an opportunity to request a fair hearing.
This decretal paragraph 6 shall not enjoin the City defendants from continuing construction necessary to prepare existing income support centers for conversion to job centers.
7. The City defendants are directed to serve and file a corrective plan together with all curricula and materials to be utilized in the retraining of personnel and revised forms and policy directives with this Court no later than February 10, 1999. Any comments on the adequacy and appropriateness of the corrective plan shall be filed with this Court no later than five business days after service of the City’s plan.
The Court will hear oral argument on the sufficiency of the corrective plan as soon as practicable after the submissions have been filed. At that time, the Court will
14

Reynolds v. Giuliani, 35 F.Supp.2d 331 (1999)
also entertain any requests to modify the preliminary injunction.
Finally, the parties are directed to confer on the formulation of a pretrial discovery plan pursuant to FED.R.CIV.P. 16 to be presented for approval to this

Court on February 18, 1999. SO ORDERED.

15

 
 Reynolds v. Giuliani, 43 F.Supp.2d 492 (1999)

43 F.Supp.2d 492 United States District Court, S.D. New York.
Lakisha REYNOLDS, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, and Elston Richards on their own behalf and on behalf of all others similarly situated,
Plaintiffs, v.
Rudolph GIULIANI, as Mayor of the City of New York; Jason Turner, as Commissioner of the City of New York Human Resources Administration; Brian J. Wing, as Commissioner of the New York
State Office of Temporary and Disability Assistance; and Dennis Whelan, as Commissioner
of the New York State Department of Health, Defendants.
No. 98 Civ. 8877(WHP). | May 24, 1999.
Qualified welfare beneficiaries brought § 1983 action against city and state officials, alleging that certain changes in food stamp and Medicaid procedures threatened to violate their federal rights. The District Court, Pauley, J., granted injunction, 35 F. Supp.2d 331. On city’s motion to amend injunction, the District Court held that: (1) injunction would be amended, to allow for conversion of three income support centers to job centers, based on city’s adoption of corrective plan eliminating many objections to original plan giving rise to injunction, and (2) preliminary audit results purporting to show greater accuracy by personnel at centers did not support injunction modification, due to questions regarding weighing of data and size of statistical sampling.
Injunction modified.
Attorneys and Law Firms
*493 Hwan-Hui Helen Lee, The Legal Aid Society, New York, NY, Marc Cohan, Rebecca L. Scharf, Welfare Law Center, Inc., New York City, Mary Ellen Burns, Northern Manhattan Improvement Corp., New York City, Constance P. Carden, New York Legal Assistance Group, New York, NY, for plaintiffs.
Jonathan Pines, Assistant Corporation Counsel, New York City, for the City defendants.
James M. Hershler, Assistant Attorney General, New York City, for the State defendants.

Opinion
MEMORANDUM AND ORDER
PAULEY, District Judge.
Defendants Rudolph Giuliani, Mayor of the City of New York, and Jason Turner, Commissioner of the New York City Department of Social Services, (the “City defendants”) move to modify a preliminary injunction entered by this Court on January 25, 1999. See Reynolds v. Giuliani, 35 F.Supp.2d 331 (S.D.N.Y.1999). For the reasons that follow, the City defendants’ motion is granted in part and denied in part.
Background
Beginning in March 1998, the New York City Human Resources Administration (“HRA”) began to revamp its procedures concerning the administration of Food Stamps, Medicaid and cash assistance to needy applicants in an effort to implement various changes in federal and State law. In particular, HRA began to convert its existing “income support centers” to “job centers” where a greater emphasis is placed on moving applicants towards self-sufficiency through employment.
On December 16, 1998, plaintiffs moved by order to show cause for a preliminary injunction on behalf of a putative class of individuals who had been denied food stamps, Medicaid and cash assistance despite their alleged eligibility and dire need. Following a three-day evidentiary hearing on January 20, 21 and 22, 1999, this Court granted plaintiffs’ application and enjoined the City defendants from opening new job centers or converting income support centers until the City formulated a corrective action plan that addressed apparent systemic violations of federal and State law.
*494 The City defendants filed a corrective action plan on February 10, 1999. Over the next eight weeks, the parties conducted discovery and litigated the sufficiency of the City’s initial proposals. During that period, the City defendants made numerous revisions to the Plan’s policy directives, brochures, and forms in response to the plaintiffs’ comments and objections. The Plan that emerged from that metamorphic process was materially
1

Reynolds v. Giuliani, 43 F.Supp.2d 492 (1999)

different than the Plan submitted by the City defendants on February 10, 1999. The Court heard oral argument on the sufficiency of the corrective action plan on April 29, 1999.1

1

The parties’ submissions to the Court are voluminous.

The papers consist of the following: City defendants’

Job Center Action Plan (2/10/99); City defendants’

Exhibits (separate bound volume) (2/10/99); Plaintiffs’

Comments on the City’s Corrective Action Plan

(2/19/99); Declaration of Jonathan Pines in Response

(3/15/99); Declaration of Hannah Cohen in Response

(3/15/99); Declaration of Jean Sheil in Response

(3/16/99); Declaration of Seth Diamond in Response

(3/16/99); Declaration of Jacquelyn Flaum in Response

(3/16/99); City’s Revised and Additional Exhibits

(separate bound volume) (3/16/99); Pines Supplemental

Declaration re: Revised Exhibits (3/25/99); Plaintiffs’

Reply Comments (3/29/99); Supplemental Declaration

of Jonathan Pines (5/3/99); Declaration of Jacquelyn

Flaum (5/3/99); Declaration of Andrew S. Bush

(5/3/99); Declaration of Patricia M. Smith (5/3/99); and

Plaintiffs’ Reply Declaration of Marc Cohan (5/3/99).

Discussion
A. The Applicable Standard [1] When modifying a preliminary injunction, a court is charged with exercising the same discretion it exercised in granting or denying the injunction in the first instance. See Sierra Club v. United States Army Corps of Engineers, 732 F.2d 253, 256 (2d Cir.1984). “An injunction is an ambulatory remedy that marches along according to the nature of the proceeding. It is executory and subject to adaption as events may shape the need, except where rights are fully accrued or facts are so nearly permanent as to be substantially impervious to change.” Id. at 256.
The testimony and other evidence adduced at the evidentiary hearing prompted this Court to express concern that the urgent needs of numerous individuals, including children, expectant mothers, and the disabled, were being overlooked as HRA endeavored to convert income support centers into job centers. See Reynolds, 35 F.Supp.2d at 339. At that time, the City defendants asserted, and they continued to argue, that processing errors occur infrequently and that isolated mistakes are inevitable in a system that processes thousands of applications per week.2 The City defendants argue that since they have formulated and started to implement a detailed corrective action plan, any risk of irreparable

harm to the plaintiffs has been extinguished. The City’s Plan as it emerged on April 29, 1999 is outlined below.

2

According to the City defendants, between February 15

and March 12, 1999, approximately 7,768 individuals

visited job centers seeking some form of assistance.

(May 3, 1999 Bush Decl. ¶ 8.)

B. The Corrective Action Plan This Court’s January 25 Order identified six areas of concern to be addressed in the City defendants’ corrective action plan. The City’s six-part Plan is organized to correspond with those six areas of concern.
Item A of the corrective action plan sets forth procedures to permit applicants to file an application for food stamps, Medicaid, or cash assistance on the first day of contact with a job center. Under the City’s plan, an applicant’s completion of the revised Applicant Job Profile (“AJP”) form starts the application process. Plaintiffs initially objected to HRA’s use of the AJP form primarily because it had not been approved by the New York State Office of Temporary and Disability Assistance or the New York State Department of Health. However, in March 1999, those agencies approved a revised version of the *495 AJP form. Thus, plaintiffs’ objection to HRA’s use of the AJP form is moot.
Item B of the corrective action plan sets forth procedures for ensuring separate determinations of eligibility for food stamps, Medicaid, and cash assistance. Under the Plan, the AJP form has been revised to prompt the applicant to make independent decisions concerning withdrawal from the application process for each category of benefit. Additionally, the AJP contains a Medicaid Application Option form in which the applicant is asked whether he wants a separate Medicaid determination if his cash application is denied. Medicaid brochures and food stamp brochures, which are distributed on the first day, have been amended to alert applicants that they may be entitled to Medicaid and food stamps irrespective of whether their cash assistance application is withdrawn or denied.
Furthermore, in response to comments from the plaintiffs, the City defendants have revised the administrative procedures set forth in the Plan. For example, HRA has revised its procedures so that applicants who fail to appear at an “I” interview may call their job center within thirty days of filing the AJP form to arrange an interview with the food stamp office. Defendants have also clarified their instructions to reflect that a separate determination on Medicaid eligibility is required for applicants who fail
2

Reynolds v. Giuliani, 43 F.Supp.2d 492 (1999)
to comply with Eligibility Verification and Review (“EVR”) requirements.
Item C of the corrective action plan establishes procedures for processing applications for food stamps, Medicaid, and cash assistance within seven days of filing. The City defendants have revised the AJP form so that questions regarding emergency assistance and immediate needs are located on the first page in bold print. Additional information regarding the Expedited Food Stamp Interview has also been added to the AJP. The AJP form now contains space for HRA personnel to indicate whether a referral to the Emergency Cash Assistance Team (“ECAT”) was made. Furthermore, if emergency assistance is denied, HRA staff must specify the reason for such denial. Staff are also instructed that applicants who have a food emergency must receive an Expedited Food Stamp Interview on the same day, and that food pantries are not to be used as substitutes for the issuance of expedited food stamps.
In response to plaintiff’s concerns, the City defendants made additional revisions to the Plan’s policy directives so that HRA personnel are instructed to determine eligibility for expedited food stamps first, and then determine if an immediate needs grant is needed. In addition, HRA personnel are instructed that expedited food stamps are to be provided even in cases where friends and neighbors are willing to provide food to the applicant.
Item D of the corrective action plan deals with procedures for processing applications for immediate cash assistance in a manner consistent with State law. The Plan’s policy directives instruct HRA staff that emergencies regarding food, shelter, utilities, and domestic violence must be investigated at once by referring the applicant for an immediate ECAT interview. If the applicant meets the eligibility criteria, an immediate cash grant must be provided on the same day. The directives also inform staff of the steps that must be taken if an applicant with an emergency has received an immediate needs grant, but has failed to complete the initial application process within thirty days. Under the Plan, signs entitled “What You Should Know If You Have an Emergency?” are to be posted in the job centers.
Item E of the corrective action plan establishes procedures for processing applications for food stamps and Medicaid when applicants fail to comply with work requirements. Federal food stamp law permits the agency to require applicants for food stamps to engage in job search and other work activities unless they are specifically exempt from the work requirements. *496 Accordingly, the

policy directives identify those categories of applicants that are exempt from work requirements. HRA has also modified its policy directives to clarify that an individual is disqualified for food stamps when he “refuses” to comply with work requirements, as opposed to when he “fails” to comply with work requirements. HRA staff are instructed that in all instances, food stamp work requirements are not applicable to Medicaid.
Item F of the corrective action plan contains procedures for providing written notice to applicants when their applications for food stamps, Medicaid, and cash assistance are denied. The City defendants have promulgated directives to provide that when a case is transferred to a non-public assistance food stamp agency, a notice is sent to the applicant. HRA has also modified another policy directive to provide for notice to applicants of their eligibility for expedited processing of their food stamp application.
The policy directives have been revised to instruct HRA personnel that when an applicant refuses to comply with the food stamp registration requirement, and therefore is disqualified for food stamps, notice of the consequences of such refusal must be provided to the applicant. The policy directives require that the notice indicate the specific time period of disqualification and the applicant’s right to re-apply at any time during the sanction period.
D. Sufficiency of the City Defendants’ Corrective Action Plan [2] Although the City defendants incorporated a number of plaintiffs’ recommendations concerning the corrective action plan, they did not adopt all of them. Thus, plaintiffs argue, among other things, that HRA will continue to deny benefits for applicants who simply fail to appear at the “I” interview, and not merely those who refuse to be interviewed. They also contend that Medicaid eligibility should be determined at job centers rather than at a referral site when a cash assistance application is denied. Furthermore, plaintiffs remain concerned that applicants with emergency needs who arrive at the wrong job center based on the applicant’s zip code will be improperly turned away by the Receptionist without the Financial Planner having made a preliminary determination of eligibility for expedited assistance. Plaintiffs also object to the lack of detailed procedures for processing immediate cash assistance applications at the two existing job centers that do not have ECAT teams in place.
The foregoing discussion does not summarize every detail of the Plan or reiterate all of plaintiffs’ objections. This Court has carefully considered plaintiffs’ arguments
3

Reynolds v. Giuliani, 43 F.Supp.2d 492 (1999)
concerning the adequacy of the Plan. Many of the potential discrepancies and inconsistencies identified by plaintiffs are remote and conjectural. On the whole, the City defendants’ corrective action plan sufficiently addresses the six areas of concern in this Court’s January 25 Order. The Court declines to tinker with the nuts and bolts of the comprehensive approach that the City defendants have formulated and begun to implement.
The preliminary injunction issued by this Court, preventing any further conversion of the income support centers into job centers was just that, a preliminary injunction. The mere fact that a hearing was held does not convert the preliminary injunction into a permanent one. The injunction was issued as a temporary freeze on the conversion of income support centers while the City defendants prepared a sufficient corrective action plan to ensure compliance with federal and State law. At this stage in the proceedings, the Court need not make a final determination on the sufficiency of the corrective action plan, but rather it must determine how to tailor the preliminary injunction to preserve the status quo.
While the City defendants’ corrective action plan represents a significant step, it remains to be seen whether the Plan’s *497 numerous policy directives will yield salutary results at job centers. The City defendants have submitted the results of two internal audits which they claim demonstrate the Plan’s successful implementation. However, given the nature of the rights at stake, this Court is inclined to proceed cautiously. In such a complex system, the translation of theory into practice presents unique challenges in terms of training HRA personnel and measuring the effectiveness of the Plan’s initiatives.
C. Implementation of the City Defendants’ Corrective Action Plan
1. Training The City defendants acknowledge in their corrective action plan that a successful transition from income support centers to job centers requires intensive training and effective implementation. HRA’s Office of Staff Development and Policy Communication (“SDPC”) has developed a training program where a full-time Staff Development Coordinator is assigned to each of the existing job centers and income support centers. The coordinator is responsible for on-site training at that center.
Before an income support center is converted to a job center, all front-line staff receive training. Since February 1999, HRA has conducted four separate rounds of

training to ensure that HRA staff and supervisors understand and follow the new policies and procedures. HRA also implemented reinforcement training on specific topics such as issuance of expedited food stamps, immediate needs grants, and time limits and procedures for filing applications. HRA monitors the effectiveness of the training programs based on employee feedback and internal auditing.
Plaintiffs challenge the adequacy of the Plan’s training component, arguing that the details of the training process are vague and that there are insufficient safeguards to ensure that HRA personnel receive and understand the new training. Plaintiffs further urge that HRA should also be required to maintain attendance lists and establish protocols for when staff members miss training sessions. In response, City defendants maintain that compliance with the new policies and procedures is assessed through case reviews, spot checks, and quality control audits.
This Court finds that the training procedures promulgated by the City defendants are sufficient. HRA cannot be required to formulate a training program that incorporates all conceivable teaching aids. Rather, in light of this Court’s January 25 Order, HRA was required to develop a training program in a relatively short time frame that promised to work. HRA appears to have accomplished that goal. Like other aspects of the corrective action plan, the training component was revised by the City defendants after their February 10 submission. At oral argument, the City defendants represented that over 3,000 personnel had received training. (Apr. 29, 1999 Tr. at 47.) This Court declines to micro-manage that process. Considerations of federalism preclude unnecessary intrusions on managerial prerogatives of local governments. See Missouri v. Jenkins, 495 U.S. 33, 51, 110 S.Ct. 1651, 1663, 109 L.Ed.2d 31 (1990). The question of whether judicial retooling of the Plan’s training component is necessary should only be addressed retrospectively through the prism of experience.
2. Preliminary Audit Results Concerning the Corrective Action Plan [3] Since this Court issued its January 25 Order, the parties requested and consented to a number of extensions to complete their respective submissions regarding the corrective action plan. The extended briefing schedule provided the parties and the Court with a glimpse of the implementation process and its preliminary effects.
In February and March 1999, HRA’s Family Independence Administration (“FIA”) conducted audits of the City’s sixteen *498 income support centers and
4

Reynolds v. Giuliani, 43 F.Supp.2d 492 (1999)

thirteen job centers in an effort to monitor the accuracy and timeliness of immediate needs assistance and expedited food stamp issuance, the separability of food stamp and Medicaid eligibility determinations, and the adequacy of notices of denial. (May 3, 1999 Flaum Decl. ¶ 2.) The March audit reflects data generated in February when the first round of corrective training was underway but not yet completed. Thus, a significant portion of the March audit reviewed applications processed prior to the training contemplated by the Plan.

Although the City defendants contend that the March 1999 audit demonstrates improved accuracy in processing applications at job centers, plaintiffs dispute the reliability of the City’s data and draw contradictory inferences from the statistics.3 Plaintiffs argue that the audits are fundamentally flawed as monitoring tools because the sample sets are not statistically weighted to account for the varying caseloads at the different centers, and because the small sample size results in a large sampling error. Plaintiffs’ calculations derived from the same audit data show error rates that are significantly higher than the City defendants’ computations. For instance, plaintiffs conclude based on the March audit that 26% of the expedited food stamp denials in February were invalid, versus the City’s figure of 8%. (May 5, 1999 Cohan Decl. ¶ 15.) Plaintiffs assert that an evidentiary hearing with expert testimony is necessary to evaluate the data and determine whether the stay against future conversion should be lifted.

3

According to the City defendants’ analysis, the

February audit indicated that immediate needs grants

were incorrectly denied in 17.4% of cases. In the March

audit, the error rate allegedly dropped to 7.8%.

Similarly, the percentage of incorrect denials of

expedited food stamps purportedly fell from 17.4% to

8% during the same time period. The City defendants

also contend that the error rate for separate

determinations of Medicaid eligibility fell from 7.8% to

4.4%.

The disparities between the parties’ calculations underscores the need for reliable, uniform audit procedures and statistically valid monitoring protocols. While data may always be subject to differing interpretations, the parties cannot even agree on the validity of the data set. Plaintiffs’ arguments concerning sample size and weighting raise legitimate questions that cannot be resolved on the current record. Nevertheless, the City defendants have advanced a feasible corrective action plan which, taken together with the training program, has the potential to work. For all these reasons, the Court rules as follows.
The sixth decretal paragraph of this Court’s January 25 Order is modified to the extent that the City defendants are permitted to convert three (3) additional income support centers to job centers at this time. This Court will consider a further modification of its preliminary injunction on the conversion of income support centers to job centers, or the opening of new job centers, after a hearing and determination on the adequacy of the City defendants’ auditing procedures for job centers and an analysis of the data collected pursuant to those procedures. The City defendants may amend or supplement their existing procedures or may demonstrate that their existing procedures are reliable and valid. In either event, this Court expects that additional data for the months of March, April, and May will be available for analysis so that the Court can be more fully informed as to whether the reforms contemplated by the corrective action plan are translating into practice.
The Court will conduct a pretrial conference on the nature and scope of the parties’ proposed submissions concerning the City defendants’ auditing procedures and the results of implementation of the corrective action plan at job centers on June 3, 1999 at 3:00 p.m.

5

 
 Reynolds v. Giuliani, 118 F.Supp.2d 352 (2000)

118 F.Supp.2d 352 United States District Court,
S.D. New York.
Lakisha REYNOLDS, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, and Elston Richards on their own behalf and on behalf of all others similarly situated,
Plaintiffs, v.
Rudolph GIULIANI, as Mayor of the City of New York; Jason Turner, as Commissioner of the New
York City Human Resources Administration, Brian J. Wing, as Commissioner of the New York
State Office of Temporary and Disability Assistance; and Barbara Debuono, as
Commissioner of the New York State Department of Health, Defendants.
No. 98 Civ. 8877(WHP). | July 21, 2000.
Qualified welfare beneficiaries brought § 1983 action against city and state officials, alleging that certain changes in food stamp and Medicaid procedures threatened to violate their federal rights. The District Court, 35 F.Supp.2d 331, granted plaintiffs’ motion for preliminary injunction, and later modified injunction to allow conversion of three income support centers to job centers, but otherwise maintained injunction, 43 F.Supp.2d 492. City moved to vacate preliminary injunction, state defendants moved to dismiss claims against them, and plaintiffs moved for class certification. The District Court, Pauley, J., held that: (1) statistical evidence that city had remedied deficiencies was insufficiently reliable; (2) Eleventh Amendment did not bar claims against state officials; and (3) class certification was appropriate.
Motion to vacate injunction denied; motion to dismiss denied; motion for class certification granted.
Attorneys and Law Firms
*355 Marc Cohan, Rebecca L. Scharf, Hwan–Hui Helen Lee, Legal Aid Society, Mary Ellen Burns, Northern Manhattan Improvement Corp., Constance P. Carden, New York Legal Assistance Group, New York City, for Plaintiffs.
Charles A. Miller, Caroline M. Brown, Covington & Burling, Washington, DC, Jonathan Pines, Assistant

Corporation Counsel, New York City, for City Defendants.
James M. Hershler, Office of the Attorney General of the State of New York, New York City, for State Defendants.
Opinion
MEMORANDUM & ORDER
PAULEY, District Judge.
This action involves class-based allegations that certain policies and practices of the New York City Human Resources Administration, the New York State Office of Temporary and Disability Assistance, and the New York State Department of Health have the effect of preventing eligible individuals from applying for and timely receiving food stamps, Medicaid and cash assistance benefits. This memorandum and order addresses three motions.
First, New York City Mayor Rudolph Giuliani and Jason Turner, Commissioner of the New York City Human Resources Administration (the “City defendants”), move to vacate the preliminary injunction entered by this Court on January 25, 1999 and modified on May 24, 1999. Additionally, defendants Brian J. Wing, Commissioner of the New York State Office of Temporary and Disability Assistance, and Barbara DeBuono, Commissioner of the New York State Department of Health (the “State defendants”), move for an order, pursuant to Fed.R.Civ.P. 12(b)(6), dismissing *356 the complaint as against them. Finally, plaintiffs Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas and Elston Richards move for an order, pursuant to Fed.R.Civ.P. 23, certifying as class plaintiffs “[a]ll New York City residents who have sought, are seeking, or will seek to apply for food stamps, Medicaid, and/or cash assistance from City defendants at Job Centers.” (Compl. ¶ 61)
The facts of this case, together with the statutory and regulatory framework underlying plaintiffs’ claims, are set forth in two prior memoranda and orders of this Court, familiarity with which is assumed. See Reynolds v. Giuliani, 35 F.Supp.2d 331 (S.D.N.Y.1999) (“Reynolds I” ); Reynolds v. Giuliani, 43 F.Supp.2d 492 (S.D.N.Y.1999) (“Reynolds II” ). However, given the complexity of this litigation and the substantial evidentiary record that the parties have amassed, it is
1

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useful to summarize the factual background and procedural posture of the action before turning to the pending motions.
Background
Until March 1998, New York City’s Human Resources Administration (“HRA”) accepted and processed applications for public assistance at offices known as income support centers. Thereafter, HRA began converting its 31 income support centers to “job centers” in an effort to implement the changes in federal and State welfare policy wrought by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“PRWORA”), Pub.L. No. 104–193, 110 Stat. 2105 (Aug. 22, 1996).
PRWORA changed welfare programs in New York and around the country by, among other things, ending the Aid to Families with Dependent Children (“AFDC”) program and replacing it with a block grant program known as the Temporary Assistance to Needy Families (“TANF”). TANF introduces mandatory work requirements and limits the amount of time that a person can collect benefits. See, e.g., 42 U.S.C. § 607 (detailing mandatory work requirements for those receiving TANF benefits); 42 U.S.C. § 602(a)(1)(A)(ii) (requiring TANF recipients to work when they are determined to be ready to work, or after twenty-four months of benefits, whichever is earlier); 42 U.S.C. § 608(a)(1)(B) (forbidding states from using TANF money to assist a family if an adult in the family has received assistance for sixty months). New York passed its own welfare reform legislation in August 1997 and participates in TANF through two cash assistance programs: Family Assistance, which is available to pregnant women and families with a minor child, and Safety Net Assistance, which is available to childless adults. See N.Y. Social Services Law §§ 158 and 349.
In New York City, these public assistance programs are administered by HRA’s Family Independence Administration (“FIA”). Since public assistance recipients are generally eligible for food stamps and Medicaid, FIA oversees the application process for individuals seeking a combination of benefits. (Smith Decl. ¶ 2) However, FIA is not directly responsible for eligibility determinations for food stamps or Medicaid. Instead, applicants seeking these benefits at job centers or income support centers are referred to separate agencies for eligibility determinations. (Id.) This division of responsibility for processing non-public and public assistance applications

predates HRA’s program of converting income support centers to job centers. (Id.)

Another important division within HRA is the Office of Quality Assurance (“OQA”), which is responsible for “preserving the quality, efficiency, and financial integrity of FIA’s programs.” (Abdullah Decl. ¶ 2) One of OQA’s functions is to replicate the quality control reviews of food stamp eligibility conducted by federal and state agencies. Under the federal food stamps program, states with relatively high error rates may face sanctions by way of a reduction *357 in federal funding.1 See 7 U.S.C.A. § 2025(d). OQA sends monitoring personnel out to centers to attempt to predict and minimize HRA’s payment error rate.

1

While the federal government reimburses the states for

the full value of the food stamp benefits distributed, it

pays only part of a state’s administrative expenses

associated with that distribution. See 7 U.S.C. §

2025(a).

At the present time, HRA operates twelve income support centers and sixteen job centers. In 1999, FIA merged four income support centers into two, converted three income support centers into job centers, and closed one income support center. The application process for public assistance at job centers is more rigorous than at income support centers, as job centers place greater emphasis on job search and employment activities for those able to work. Last year, HRA’s job centers and income support centers received and processed approximately 168,000 public assistance applications and assisted approximately 350,000 individuals in engaging in employment activities. (Smith Decl. ¶ 3)

Procedural History
Plaintiffs commenced this action by order to show cause in December 1998 seeking, inter alia, a temporary restraining order enjoining the conversion of additional income support centers to job centers. Plaintiffs alleged that HRA’s staff at job centers were routinely preventing prospective applicants from applying for benefits during their first visit to a job center, pressuring applicants to withdraw their applications, improperly denying combined applications for cash assistance, food stamps and Medicaid when only cash assistance had been denied, and failing to provide adequate notice of determinations. The complaint asserted private rights of action under federal food stamps and Medicaid statutes and regulations, including the right to apply for such benefits
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Reynolds v. Giuliani, 118 F.Supp.2d 352 (2000)
without delay and to receive timely determinations of eligibility. The complaint also set forth claims under 42 U.S.C. § 1983 based on alleged violations of these statutes and regulations as well as plaintiffs’ federal due process rights.
Following a period of expedited discovery, this Court conducted a three-day evidentiary hearing in January 1999. On January 25, 1999, this Court held in Reynolds I that plaintiffs had established irreparable harm and a likelihood of success on their claims. The Court rejected the City defendants’ argument that the errors and deficiencies at job centers were isolated problems. On the contrary, the evidence pointed to system-wide failures resulting from HRA’s hurried conversions of income support centers to job centers and its incremental, post hoc responses to what appeared to be an array of serious and interrelated problems.
At the hearing, the Court heard evidence that HRA had opened its first job center in March 1998 as a test-bed with the intention of addressing problems as they arose. See Reynolds I, 35 F.Supp .2d at 341. The evidence demonstrated that problems abounded. Data proffered by plaintiffs revealed sharp declines in applicants being approved for benefits after an income support center was converted to a job center. Those declines appeared attributable to the efforts of job center personnel to deter applicants from applying for food stamps, Medicaid and cash assistance. See Reynolds I, 35 F.Supp.2d at 343. By way of example, a monthly average of 48.96% of all applicants were diverted from seeking assistance at the Jamaica Job Center. Id. Figures for other job centers were equally alarming. Other evidence confirmed what might be fairly characterized as a culture of improper deterrence at job centers, including summary reports prepared by job centers tracking the number of applicants diverted. Id. at 344–45.
Plaintiffs also presented evidence that job centers were failing to comply with *358 certain statutory and regulatory requirements for administering food stamps and Medicaid benefits. For example, the evidence indicated that job centers were failing to timely process applications, failing to separate eligibility determinations, erroneously denying food stamps and Medicaid applications, failing to allow individuals to apply for benefits on their first visit to a job center, and failing to provide adequate notice of determinations. See Reynolds I, 35 F.Supp.2d at 345–47.
Based on these findings, the Court granted plaintiffs’ application for a preliminary injunction and directed the City defendants to:

• allow plaintiffs and all persons applying for food stamps, Medicaid and cash assistance, including expedited food stamps and temporary pre-investigation grants to apply for such benefits on the first day that they visit a Job Center;
• process all applications for expedited food stamps and temporary pre-investigation grants at Job Centers within the time frames required by law;
• make eligibility determinations regarding food stamps and Medicaid applications at Job Centers separate from the eligibility determinations regarding cash assistance applications; and
• send plaintiffs and all persons applying for food stamps, Medicaid and cash assistance, including expedited food stamps and temporary pre-investigation grants at Job Centers timely and adequate written notice of determinations of their eligibility for all benefits which they seek.
Reynolds I, 35 F.Supp.2d at 347–48. The Court enjoined the City defendants from opening new job centers and from converting existing income support centers to job centers, pending a hearing and determination on the adequacy of a corrective plan addressing remedial training and procedures for job center personnel. At a minimum, the corrective action plan was to address the following issues:
• Procedures to permit applicants to file an application for food stamps, Medicaid or cash assistance on the first day of contact with a Job Center;
• Procedures for separate determinations on an applicant’s request for food stamps, Medicaid and cash assistance;
• Procedures for processing applications for expedited food stamps within seven days from the date the application is submitted;
• Procedures for processing applications for pre-investigation immediate needs cash assistance in a manner consistent with State law;
• Procedures for processing applications for food stamps and/or Medicaid where applicants fail to comply with work requirements; [and]
• Procedures for providing written notice to applicants denied food stamps, Medicaid and/or cash assistance together with the basis for those denials and an opportunity to request a fair hearing.
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Reynolds v. Giuliani, 118 F.Supp.2d 352 (2000)

Reynolds I, 35 F.Supp.2d at 348.2 The Court was (and remains) sensitive to intruding on HRA’s ability to freely exercise its managerial prerogatives and to implement policy, but nevertheless observed:

2

The Court also continued a previously ordered informal

intervention process under which individual cases could

receive expedited review. See Reynolds I, 35 F.Supp.2d

at 348.

In its quest to enhance the delivery of food stamps, Medicaid and cash assistance benefits to the City’s most needy residents, the City cannot lose sight of the requirements imposed by federal statutes and regulations. Because some of the City’s neediest residents continue to fall through the safety net at job *359 centers, this Court is impelled to ensure that remedial steps are taken on a specified time-line and that the effects of the revisions to job center procedures are measured to ascertain whether they are working. Reynolds I, 35 F.Supp.2d at 341. Thereafter, the City defendants set out to formulate a comprehensive corrective action plan and to retrain its front-line personnel at job centers and income support centers. After a series of revisions that were shaped in part by plaintiffs’ suggestions and criticisms, the City defendants submitted a proposed corrective action plan and moved for an order lifting the stay on job center conversions.
On May 24, 1999, this Court approved the corrective action plan and modified the preliminary injunction to allow the City defendants to convert three more income support centers to job centers. See Reynolds II, 43 F.Supp.2d at 492. The Court declined to permit additional job center conversions because the City defendants’ proof was inconclusive as to whether its corrective action plan and other remedial measures were having salutary effects at job centers.
At that time, FIA had audited its job centers and income support centers for the months of January and February 1999 in an effort to monitor their performance in a number of critical areas. While the City defendants argued that the audit data demonstrated improved accuracy in processing applications at job centers, plaintiffs drew contrary conclusions from the same data set and raised doubts about the reliability of FIA’s audit procedures. See Reynolds II, 43 F.Supp.2d at 498. Those issues could not be resolved on the record as it existed at that time. The Court observed: “The disparities between the parties’ calculations underscores the need for reliable, uniform audit procedures and statistically valid

monitoring protocols. While data may always be subject to differing interpretations, the parties cannot even agree on the validity of the data set.” Reynolds II, 43 F.Supp.2d at 498.
Accordingly, this Court ruled that it would consider a further modification of the preliminary injunction “after a hearing and determination on the adequacy of the City defendants’ auditing procedures for job centers and an analysis of the data collected pursuant to those procedures.” Reynolds II, 43 F.Supp.2d at 498. The City defendants were invited to amend or supplement their audit procedures, or to demonstrate that their existing procedures were reliable and valid. Id. In either event, the Court envisioned that additional data for the months of March, April, and May 1999 would be available for analysis so that it could be more fully informed “as to whether the reforms contemplated by the corrective action plan are translating into practice.” Id.
Following Reynolds II, the parties engaged in additional discovery as the City defendants prepared to bring on a further application to modify the preliminary injunction. An evidentiary hearing was scheduled by this Court for July 26, 1999. On the eve of that hearing, after voluminous submissions had been filed with the Court, the City defendants requested that the hearing be adjourned. During a telephone conference conducted on July 26, 1999, the City conceded that it was not prepared to defend the reliability of their existing audit procedures. By order dated July 26, 1999, this Court denied the City defendants’ motion to modify the preliminary injunction without prejudice to its renewal upon further application to the Court.
The City defendants balked at that time because they apparently recognized that the results of the audits conducted by FIA in anticipation of the hearing were materially flawed. One of the principal criticisms leveled by plaintiff’s expert was that FIA sampling protocol—which involved manually selecting cases from batches of application control cards that are maintained at job and income support centers—generated *360 a hopelessly biased sample in which accepted cases were over-represented. (Faust 1st Rpt. ¶ 59; Faust 2d Rpt. ¶ 19)
During the months of August and September 1999, the City defendants conducted another audit of applications filed in May, June and July 1999 using a newly-designed audit instrument (the “Reynolds Audit”). Although plaintiffs suggested to the City defendants that their respective experts collaborate on the design of the new audit instrument, their overture was rejected.
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Reynolds v. Giuliani, 118 F.Supp.2d 352 (2000)

On September 22, 1999, this Court conducted a status conference at which the City defendants indicated their intention to renew their motion to dissolve the preliminary injunction. Since plaintiffs had not participated in designing the Reynolds Audit, they sought time to conduct discovery. The Court acceded to the City defendants’ request for a prompt hearing date and established tentative dates for the expeditious completion fact and expert discovery. During a further pretrial conference conducted on October 21, 1999, those tentative dates hardened into firm deadlines, and an evidentiary hearing was scheduled for December 15 and 16, 1999.

The hearing proceeded on December 15 and 16, 1999. A third and final day of testimony was taken on January 19, 2000, and thereafter the parties submitted post-hearing memoranda of law and proposed findings of fact. On March 2, 2000, the Court heard oral argument on the City defendants’ motion. By order dated May 18, 2000, the Court directed plaintiffs and the State defendants to submit additional memoranda of law concerning the State defendants’ motion to dismiss plaintiffs’ claims as against them.

During the evidentiary hearing, the City defendants presented testimony from Patricia M. Smith, Executive Deputy Director for FIA; Jacqueline Flaumm, Assistant Deputy Commissioner for FIA; Rochelle L. Abdullah, Director of OQA; Andrew Bush, Executive Deputy Administrator of HRA’s Office Policy and Program Analysis (“OPPA”); Meyer Elbaz, HRA’s Assistant Deputy Administrator for Management Information Systems; and Dr. June E. O’Neill, an expert in statistical sampling and the use and interpretation of data. Plaintiffs’ sole witness was their statistician, Richard Faust.

In addition to this testimony, the parties made extensive

pre-hearing submissions. Notably, the City defendants offered a final version of their expert report, dated October 12, 1999. (City Ex. 1) The analyses contained in this final version of Dr. O’Neill’s report included additional case files that were located and audited during the final weeks of the Reynolds Audit. Dr. O’Neill also

submitted a lengthy supplemental declaration, dated January 7, 2000, containing a host of new tables and revised calculations. Plaintiffs’ expert submitted two reports in connection with the Reynolds Audit, the first dated December 6, 1999 (“Faust 2d Rpt.”), and the second dated January 17, 2000 (“Faust 3d Rpt.”).3 Plaintiffs’

January 17, 2000 expert report addressed the matters raised in Dr. O’Neill’s supplemental declaration of January 7, 2000.

3

The first report submitted by plaintiffs’ expert

addressed the City defendants’ audit for the hearing that had been scheduled for July 26, 1999.
Discussion
I. The City Defendants’ Motion To Vacate The Preliminary Injunction The purpose of the evidentiary hearing was to determine whether the corrective action plan approved in Reynolds II had translated into practice. The City defendants pointed to an array of initiatives and other items of proof in an effort to show that it had. Principally, the City defendants rely on the results of the Reynolds Audit in which HRA personnel audited 1,893 case files drawn from job centers and income support centers.
*361 The City defendants also contend that HRA has improved its other monitoring and oversight activities. In January 1999, OQA implemented Process Evaluation and Review Team (“PERT”) audits, in which a pair of FIA auditors conduct a week-long inspection and review of the operations at a particular job center. The City defendants also highlight OQA’s “QC [Quality Control] Doctor” program, in which several OQA personnel make repeated visits to a particular center to focus on and resolve particular problems. In addition, shortly after the preliminary injunction issued in Reynolds I, FIA began sending “spot-checkers” to job and income support centers. The spot-checkers posed as applicants in order to determine whether individuals were permitted to file for benefits on their first day of contact with a center. Apart from these oversight activities by HRA, centers are also subject to reviews by the New York State Office of Temporary and Disability Assistance (“OTDA”), as well as the United States Department of Agriculture (“USDA”).
Additional monitoring activities have been undertaken in connection with this litigation. Pursuant to this Court’s order entered on April 5, 1999, plaintiffs’ counsel has been permitted to conduct one-day inspections of up to five job centers each month during discovery. The particular center to be inspected on any given day is identified by plaintiffs’ counsel 48 hours in advance. In addition, the parties have utilized an “informal intervention” procedure in which plaintiffs’ counsel may call HRA’s attention to particular cases of exigent need for expedited food stamps and/or emergency cash assistance.
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Reynolds v. Giuliani, 118 F.Supp.2d 352 (2000)
Finally, the City defendants have begun using the results of “fair hearing” appeals of agency determinations as a monitoring device for job center and income support center performance. By comparing HRA’s “win rates” for appeals taken from both job center and income support center eligibility determinations, the City defendants conclude that job centers generally perform better.
Based on these efforts and the Reynolds Audit, the City defendants argue that there is no longer a basis for maintaining the preliminary injunction. (City Defs.’ Post–Hearing Mem. at 2) Before turning to the merits of the City defendants’ motion, the Court addresses the parties’ divergent views as to the standard governing the City’s application.

A. The Applicable Standard [1] This Court set out the applicable standard for modifying a preliminary injunction in Reynolds II. On such motions, “a court is charged with exercising the same discretion it exercised in granting or denying the injunction in the first instance.” Reynolds II, 43 F.Supp.2d at 494 (citing Sierra Club v. United States Army Corps of Engineers, 732 F.2d 253, 256 (2d Cir.1984)). “An injunction is an ambulatory remedy that marches along according to the nature of the proceeding. It is executory and subject to adaption as events may shape the need, except where rights are fully accrued or facts are so nearly permanent as to be substantially impervious to change.” Sierra Club, 732 F.2d at 256.

Though both plaintiffs and the City defendants would accept this general standard as controlling, they join issue as to how it should be applied. At the outset, the Court observes that the City defendants’ motion seeks to vacate all portions of this Court’s January 25, 1999 preliminary injunction, including both the stay on job center conversions and those decretal paragraphs ordering that applications for food stamps, Medicaid and cash assistance be processed in conformity with applicable statutory mandates.4 Focusing on these *362 two aspects of the order, the City defendants contend that there is no longer a factual or legal basis for continuing the injunction.

4

The City defendants’ notice of motion, dated December

10, 1999, states in relevant part: “[T]he Corrective

Action Plan approved by this Court on May 24, 1999,

has been effective in improving and continuing to

improve the circumstances that gave rise to the action,

so that there is no longer any justification for continued

judicial restrictions on defendants’ conduct.

Accordingly, City Defendants respectfully request that

the preliminary injunction be vacated.”

Specifically, the City defendants argue that plaintiffs failed to prove during the evidentiary hearing that job center personnel continue to deter individuals from applying for benefits. The City defendants further contend that the Reynolds Audit demonstrated that job centers perform at least as well, and often better than, income support centers. Thus, as to job center conversions, the City defendants claim that the conditions that may have warranted preliminary injunctive relief in Reynolds I have abated, and they argue that plaintiffs have offered no evidentiary basis for its continuance.

With respect to that branch of the preliminary injunction requiring HRA to comply with federal and state law, the City defendants assert that any errors in processing applications at job centers are isolated occurrences. Relying again on the results of the Reynolds Audit, the City defendants further claim that HRA is in “substantial compliance” with applicable statutory and regulatory requirements. Consequently, the City defendants argue that the balance of the preliminary injunction should be vacated because plaintiffs cannot establish a municipal “policy or custom” pursuant to Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).5

5

The State defendants’ similarly argue that plaintiffs’

complaint does not plead a valid Section 1983 claim

because it does not adequately allege a State policy or

custom. See infra, Part III.

Plaintiffs attack the City defendants’ characterization of the parties’ respective burdens of proof at this juncture in the proceedings, and they dispute the applicability of Monell’ s policy or custom requirement. Plaintiffs argue that since their class-action complaint seeks only prospective injunctive relief, Monell is inapplicable. Plaintiffs also argue that even if Monell applied, the proof in Reynolds I established the requisite policy or custom, and the City defendants have not met their burden of showing compliance with applicable laws or cessation of improper deterrence at job centers. Since it is a threshold issue that really underlies both of the aforementioned branches of the preliminary injunction, the Court turns first to the City defendants’ arguments concerning the relevancy of Monell.
There is scant and conflicting authority as to whether Monell applies in actions where the only remedy demanded is prospective injunctive and declaratory relief. However, those courts which have squarely addressed the issue have concluded that it does not. The Ninth Circuit’s
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Reynolds v. Giuliani, 118 F.Supp.2d 352 (2000)
decision in Chaloux v. Killeen, 886 F.2d 247 (9th Cir.1989), is a leading example. In Chaloux, the plaintiffs were recipients of social security disability benefits who challenged the constitutionality of Idaho’s statutory scheme of post-judgment execution and garnishment procedures. Their class action complaint alleged that the statute violated their due process rights and ran afoul of the Supremacy Clause because it permitted seizure of their federally exempt disability benefits. See Chaloux, 886 F.2d at 248–49. The plaintiffs invoked 42 U.S.C. § 1983 and sought prospective declaratory and injunctive relief. Id. at 250.
On appeal from the district court’s order dismissing the complaint, the Ninth Circuit considered whether Monell’s official policy or custom requirement was applicable to claims against the defendant county sheriffs named in their official capacities. The court ruled that this requirement did not apply to “a suit for prospective relief against a county or its officials for enforcing allegedly unconstitutional state laws.” *363 Chaloux, 886 F.2d at 250. The court explained:
We reach this conclusion upon review of the policy justifications supporting the decision in Monell. The Monell Court set forth an “official policy or custom” requirement to limit § 1983 damage awards against municipalities. That limitation served to alleviate the imposition of financial liability on local governments based solely on a respondeat superior theory.
....
We find no persuasive reasons for applying the Court’s “official policy or custom” requirement to suits against counties only for prospective relief. The justification for limiting an action for damages is notably absent when the relief sought is an injunction halting the enforcement of an unconstitutional state statutory scheme. The relief sought here, a declaration that the Idaho statutes are unconstitutional and an injunction against their enforcement, do not carry any threat of fiscal liability.
Chaloux, 886 F.2d at 250–51 (citations and footnotes omitted); accord Los Angeles Police Protective League v. Gates, 995 F.2d 1469, 1472 (9th Cir.1993) (“[T]he City can be subject to prospective injunctive relief even if the constitutional violation was not the result of an official custom or policy.”) (internal quotation marks omitted); Nobby Lobby, Inc. v. City of Dallas, 767 F.Supp. 801, 810 (N.D.Tex.1991) (“The Court can find in the case law no reason to impose an official policy or custom requirement in a situation where prospective relief alone is at issue and there is no threat of municipal financial liability.”)

(internal quotation marks omitted), aff’d on other grounds, 970 F.2d 82 (5th Cir.1992); Santiago v. Miles, 774 F.Supp. 775, 792–93 (W.D.N.Y.1991) (in action for prospective injunctive relief against State officials pursuant to Ex parte Young, plaintiffs were not required to prove that defendants acted pursuant to a policy or custom).

Several courts have applied Monell’s policy or custom requirement in actions involving only prospective injunctive relief, but did so without analysis. See Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 997 (11th Cir.1990); Salazar v. District of Columbia, 954 F.Supp. 278, 324 (D.D.C.1996); United States v. Commonwealth of Pennsylvania, 902 F.Supp. 565, 580, 649 (W.D.Pa.1995), aff’d, 96 F.3d 1436 (3d Cir.1996). Other cases cited by the City defendants are distinguishable in that they involved claims for both damages and injunctive relief, see, e.g., Barrett v. Harwood, 189 F.3d 297, 300, 303 (2d Cir.1999); Adkins v. Board of Educ. of Magoffin County, Ky., 982 F.2d 952, 957–59 (6th Cir.1993); Nix v. Norman, 879 F.2d 429, 433 (8th Cir.1989), or for retroactive declaratory relief, see Community Health Care Association of New York v. DeParle, 69 F.Supp.2d 463, 471–72, 474–75 (S.D.N.Y.1999); see generally Green v. Mansour, 474 U.S. 64, 73, 106 S.Ct. 423, 428, 88 L.Ed.2d 371 (1985).

Notwithstanding the paucity of case law supporting the City’s position, its arguments are not without merit. Plaintiffs in this action seek broad-based, system-wide injunctive relief. Such relief would necessarily have some

impact on the City’s expenditure of public funds, thereby undercutting the rationale of Chaloux and its progeny.

Viewed through a different lens, the relief plaintiffs seek would only require the City to comply with applicable federal requirements, something it is already bound to do. See generally Rothstein v. Wyman, 467 F.2d 226, 232 (2d

Cir.1972). This Court, however, need not decide whether the City’s argument concerning Monell—raised now for the first time—is correct.6 Whether or not Monell requires *364 plaintiffs in this action to plead and prove a policy or custom, the evidence adduced in Reynolds I, see supra, was indicative of a widespread pattern of violations that

would be actionable under Monell. See City of Canton, Ohio v. Harris, 489 U.S. 378, 388–89, 109 S.Ct. 1197, 1204–05, 103 L.Ed.2d 412 (1989); Walker v. City of New York, 974 F.2d 293, 297–98 (2d Cir.1992); Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983); Turpin v. Mailet, 619 F.2d 196, 200 (2d Cir.1980).

6

In this Court’s view, the surface appeal of the City

defendants’ argument that proof of a policy or custom

is required in a case involving institutional reform lies

not with their expansive reading of Monell, but rather

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Reynolds v. Giuliani, 118 F.Supp.2d 352 (2000)
with the well-established limitations on a federal court’s authority to decree structural relief. See, e.g., Dayton Board of Educ. v. Brinkman, 433 U.S. 406, 420, 97 S.Ct. 2766, 2774, 2775, 53 L.Ed.2d 851 (1977) (“[O]nly if there has been a systemwide impact may there be a systemwide remedy.”); Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). Here, the scope of preliminary injunctive relief entered against the City defendants in Reynolds I reflected the nature of plaintiffs’ class-based claims and the strength of the evidence supporting those claims.
[2] Accordingly, to obtain the relief they seek, the City defendants must show that the conditions warranting preliminary injunctive relief in Reynolds I have been remedied through their successful implementation of the corrective action plan or have otherwise abated. Plaintiffs, having met their burden in Reynolds I of establishing a risk of irreparable harm based on the City defendants’ failure to comply with federal law, are not required to re-prove their case for preliminary injunctive relief. The question for the Court is whether circumstances have changed, particularly since Reynolds II when the Court approved the City’s corrective action plan, such that continuation of the preliminary injunction is no longer warranted. The burden of establishing such changed circumstances rests squarely on the City defendants. The Court will not presume that the City’s corrective action plan has succeeded simply because it had all the right ingredients; the proof of the pudding is in the eating.
With these precepts in mind, the Court turns to the City defendants’ motion.
B. The Reynolds Audit
1. Overview of the Sampling Process and the Audit Instrument The City defendants’ describe the Reynolds Audit as a “massive undertaking” (City Defs.’ Post–Hearing Mem. at 10), a characterization plaintiffs do not dispute. The City defendants embarked on this effort immediately after informing the Court on July 26, 1999 that it was unprepared to defend its existing audit procedures.
First, the City defendants designed a series of protocols for selecting a random sample of cases from among the applications submitted at job centers and income support centers in May, June and July 1999. After drawing the sample, the City utilized a new audit instrument to review the sampled case files and measure performance in the following areas: “(a) providing immediate needs cash

assistance where appropriate; (b) providing expedited food stamp service where appropriate; (c) timely providing immediate needs and expedited food stamps; and (d) making separate determinations or referrals for food stamps or Medicaid where cash assistance was denied or the application was withdrawn.” (O’Neill Rpt. ¶ 9)7 Additionally, the instrument sought to determine whether a notice of benefit determination was issued to an applicant.

7

Citations to “O’Neill Rpt.” are references to Dr.

O’Neill’s second amended report, dated October 18,

1999, submitted by the City defendants.

In order to select its random8 sample of case files, the City defendants initially decided *365 to utilize HRA’s “NYCWAY” computerized database. HRA maintains over 100 different computer databases. (Elbaz Decl. ¶ 3) It uses the NYCWAY system to track appointments made for public assistance applicants in education, training and work programs. (Dep/Elbaz/154–55) Thus, the NYCWAY system focuses primarily on public assistance recipients rather than on applicants. (Elbaz Decl. ¶ 6)

8

Technically, the City defendants’ sampling protocol

was designed to select a “systematic” rather than a

“random” sample. Compare O’Neill Rpt. ¶ 14 (“I

assisted the City in designing a sample selection

protocol that would generate a random but stratified

sample of applicants ....”), and Tr/O’Neill/78 (“Do you

understand that in fact the sampling protocol you

designed for the [Reynolds] audit would more correctly

be described as a systematic sampling protocol? A:

Yes, exactly right.”). In a systematic sampling, only the

initial sampling unit is randomly selected; thereafter,

every n th unit is drawn within a predetermined

interval. (Faust 2d Rpt. ¶¶ 21, 27)

Information for the NYCWAY system is electronically transmitted from the State of New York Welfare Management System (“WMS”), a state-operated computer system used to maintain information on applicants for certain benefits, including food stamps, Medicaid and cash assistance. NYCWAY receives updated information from the WMS system every night so it is available to case workers the following morning. (Dep/Elbaz/63–64) The primary focus of the WMS system is on active public assistance recipients who have completed the application process, though it contains limited information regarding applicants for food stamps, Medicaid and cash assistance. (Elbaz Decl. ¶ 5)
On or about August 5, 1999, the City defendants drew a sample of cases from the NYCWAY database. This was done with a computer program designed to select cases
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Reynolds v. Giuliani, 118 F.Supp.2d 352 (2000)
from job centers and income support centers in proportion to the number of applicants at each center. (O’Neill Rpt. ¶¶ 14, 16) The City defendants originally intended to include approximately 2,100 cases in the Reynolds Audit, consisting of an average of 25 cases per month for each center, with a minimum of 20 cases selected at any given center. (O’Neill Rpt. ¶ 14 and Ex. B)
However, as HRA auditors began to review the sampled case files, they discovered that the NYCWAY data set was over-inclusive. For example, it contained applications by persons with AIDS under the “DASIS” (Division of Aids Services and Income Support) program. (O’Neill Rpt. ¶ 16) Additionally, HRA realized that the NYCWAY data set was under-inclusive because it replaced old information about applicants with any new information. (Dep/Elbaz/52) Once old information is over-written on the NYCWAY system, it cannot be retrieved. For example, if an applicant files more than one application, the newest application automatically purges any information about all earlier applications. (Dep/Elbaz/55–56)
These shortcomings led the City defendants to draw a second sample from a different database known as the Eligibility Verification Review (“EVR”) information system. Like the NYCWAY system, the EVR database receives applicant-specific information from the state-run WMS system. (Dep/Elbaz/66) The EVR computer system is oriented around the eligibility verification review process, wherein the information and supporting documentation provided by applicants is screened for accuracy. (Elbaz Decl. ¶ 8) Once an EVR appointment is scheduled, the system tracks the applicant through the application process. In contrast to the NYCWAY system, the EVR system does not over-write data, so every filing of an application is preserved. (Dep/Elbaz/87, 97, 174)
The second sample of cases was drawn from the EVR database on or about August 11, 1999. (O’Neill Rpt. ¶ 17) At that time, however, HRA auditors had already begun reviewing case files for May 1999 from the NYCWAY sample. Rather than start anew, the City defendants decided that for cases filed in May 1999, it would rely primarily on the NYCWAY sample and would draw additional cases from the EVR database only when a sufficient number of NYCWAY-selected case files could not be physically located and retrieved from the centers. (O’Neill Rpt. ¶ 17) However, since the EVR database was superior because it more closely “approximated the target group” (O’Neill Rpt. ¶ 17) of applicants, the City defendants made it the primary database when it drew samples *366 for the months of June and July 1999; for those months, the NYCWAY database was used as a

supplement.
Once the primary and secondary samples were drawn, the case files were physically delivered to a central location at HRA headquarters. (O’Neill Rpt. ¶ 20) There, the files were audited by OQA staff members. Of the ten auditors involved, some had prior experience in conducting such reviews while others did not. (Dep/Mortley/11; Dep/Ricks/13) The auditors used a newly-designed audit instrument that presented a series of questions in two stages. (O’Neill Rpt., City Ex. A)
Stage one of the audit instrument contained several categories of questions focusing on whether applications were properly screened and processed for, inter alia, immediate needs cash and/or expedited food stamps eligibility. Stage two confined its questions to cases where an application was rejected (“RJ”) or “single/issue closed” (“SI/CL”) The SI/CL category refers to applicants who actually received emergency cash assistance or expedited food stamps.
After the auditors finished their review, the case files and completed audit instruments were given a second-level review by selected staff members from job centers and income support centers. (Abdullah Decl. ¶ 22; Flaum Decl. ¶ 9) Thereafter, a third-level review was conducted by regional managers or their deputies. (Flaum Decl. ¶ 17)

2. Applicable Standards The City defendants do not dispute that they bear the burden of demonstrating that Reynolds Audit was conducted in conformity with generally accepted survey principles. When a sample is drawn for the purpose of generating data about a population to be offered for its truth, as the Reynolds Audit is being offered here, “[t]he methods used must conform to generally recognized statistical standards.” Manual for Complex Litigation, § 21.493 (3d ed.1997). Relevant factors include whether:

• the population was properly chosen and defined;

• the sample chosen was representative of that population;

• the data gathered was accurately reported; and • the data was analyzed in accordance with accepted statistical principles.9

9

In some contexts, it becomes necessary to distinguish

between surveys conducted for the purpose of

generating objective data to be offered for its truth, and

sampling in order to gauge opinions, attitudes and

9

Reynolds v. Giuliani, 118 F.Supp.2d 352 (2000)
beliefs held by a population. Surveys of the latter type, which are prevalent in trademark and false advertising cases, see Schering, 189 F.3d at 225, may be subject to additional scrutiny, especially with respect to how the survey questions were framed and presented. However, the four factors listed above establish benchmarks for assessing the reliability of any survey, irrespective of its methodology and objectives.
Manual for Complex Litigation, § 21.493. See generally Schering Corp. v. Pfizer Inc., 189 F.3d 218, 224–26 (2d Cir.1999).
Both parties’ experts subscribe to the view that the representativeness of the sample is the primary concern of any researcher because without it, one cannot reliably project from the sample to the population. See Moore’s Federal Practice, Reference Manual on Scientific Evidence, at 237 (Matthew Bender 1997) (“Identification of a survey population must be followed by selection of a sample that accurately represents that population.”); accord Pittsburgh Press Club v. United States, 579 F.2d 751, 758 (3d Cir.1978); Rosado v. Wyman, 322 F.Supp. 1173, 1181–82 (E.D.N.Y.1970), aff’d, 437 F.2d 619 (2d Cir.1970), aff’d, 402 U.S. 991, 91 S.Ct. 2169, 29 L.Ed.2d 157 (1971). Representativeness can usually be assured when the source(s) from which the sample is drawn (i.e., the “sampling frame”) accurately reflects the target population. See Moore’s Federal Practice, Reference Manual on Scientific Evidence, at 235. In addition, the sampling protocol *367 should be designed so that every element in the sampled population has a known, nonzero probability of being selected. Id. at 237. See also American Home Products Corp. v. Barr Laboratories, Inc., 656 F.Supp. 1058, 1070 (D.N.J.1987), aff’d, 834 F.2d 368 (3d Cir.1987); Dreyfus Fund, Inc. v. Royal Bank of Canada, 525 F.Supp. 1108, 1116 (S.D.N.Y.1981); Handbook of Recommended Procedures for the Trial of Protracted Cases, 25 F.R.D. 351, 429 (Judicial Conf.1960); Kevin H. Smith, External Validity: Representativeness and Projectability in the Probative Value of Sample Surveys, 39 Wayne L.Rev. 1433, 1484–87 (1993).
[3] Nevertheless, even where a survey is found to suffer from technical or methodological flaws, it may still be received in evidence subject to arguments about its weight and probative value. See Schering, 189 F.3d at 228; Bacardi & Co. Ltd. v. New York Lighter Co., Inc., 2000 WL 298915, at *5 (E.D.N.Y. Mar. 15, 2000) (97 Civ. 7140(JS)). For example, where a sampling frame is under-inclusive, “the survey’s value depends on the extent to which the excluded population is likely to react differently from the included population.” Reference

Manual on Scientific Evidence, at 236; accord Champion v. Shalala, 33 F.3d 963, 966–67 (8th Cir.1994). Similarly, criticisms that a sampling protocol was not random or otherwise reliable, see, e.g., Debra P. v. Turlington, 730 F.2d 1405, 1408, 1411 n. 11 (11th Cir.1984), or resulted in a high non-response rate, see, e.g., Champion, 33 F.3d at 967, will not render a survey inadmissable. Rather, such shortcomings will undermine a survey’s reliability and erode its probative value. Of course, a combination of technical flaws or a single, fundamental defect may eviscerate the evidentiary force of a survey. See, e.g., Universal City Studios, Inc. v. Nintendo Co., Ltd., 746 F.2d 112, 118 (2d Cir.1984).
Plaintiffs take the view that the Reynold Audit is fundamentally flawed in so many areas that it cannot be used to draw any reliable conclusions about the performance of job centers and income support centers. First, plaintiffs argue that the sampling frame for the Reynolds Audit, i.e., the NYCWAY and EVR computer databases, is under-inclusive of the population of applicants because it does not include applications that were withdrawn or rejected on the same day they were filed. Consequently, plaintiffs contend that the sampling frame is unrepresentative of the population. In addition, plaintiffs argue that the Reynolds Audit sample of 1,893 cases is not sufficiently representative of the NYCWAY and EVR databases from which it was drawn. Further, plaintiffs claim that an inordinately high number of cases could not be located and retrieved from centers or were erroneously excluded from the auditing process. Finally, plaintiffs contend that the two-stage audit instrument used to conduct the Reynolds Audit was poorly designed and failed to include necessary questions. The Court addresses these issues seriatim.
3. The Absence of Certain Withdrawn and Rejected Cases From the Sampling Frame According to plaintiffs, the greatest fault with the Reynolds Audit is that its sampling frame excluded virtually all cases in which an application was withdrawn on the same day it was submitted. (Faust 2d Rpt. ¶¶ 29, 48–80) In fact, only 12 of the 1,893 cases in the Reynolds Audit sample are withdrawn cases. Relatedly, plaintiffs contend that an unknown number of cases rejected on the same day they were submitted are absent from the sampling frame, though plaintiffs acknowledge that this may present a lesser problem since the sample includes a substantial number of rejected cases. The City defendants do not dispute that the NYCWAY and EVR databases generally do not capture instances where an application is filed and withdrawn on the same day. (Bush Decl. ¶¶ 3–4) They argue, however, that the absence of withdrawn cases
10

Reynolds v. Giuliani, 118 F.Supp.2d 352 (2000)
is largely immaterial *368 because they do not impact the principal issues being audited and therefore could not have biased the survey results. (City Post–Hearing Mem. at B–3) As for rejected cases, the City defendants appear to dispute that any significant number of rejected cases were improperly excluded.
Before turning to the merits of these arguments, the Court addresses several preliminary points. First, the Reynolds Audit was apparently intended to include withdrawn cases, even though it failed to do so. In that regard, page one of the audit instrument required auditors to indicate the disposition of the application being reviewed. One of the six check boxes provided on the audit instrument was for “WD” (withdrawn) applications.10 Further, the City defendants’ expert report observed that “[t]he instrument was designed to capture Job Center and Income Support Center performance in ... (d) making separate determinations or referrals for Food Stamps or Medicaid where cash assistance was denied or the application was withdrawn.” O’Neill 2d Rpt. ¶ 9 (emphasis added). 10 The other checks boxes are “AP” (application pending),
“SI” (single-issue), “AC” (acceptance), “RJ” (rejected) and “SI/CL” (single-issue, closed).
Nevertheless, the expert reports submitted by the City defendants in advance of the evidentiary hearing failed to account for the absence of withdrawn cases from the NYCWAY and EVR databases. By way of illustration, Table I of the City defendants’ expert report (City Ex. 1) provided statistical breakdowns of dispositions for the job center and income support center samples, as well as comparative data on dispositions from the NYCWAY and EVR databases. The table lists only five of the six disposition categories: application pending, single-issue, acceptance, rejected, and single-issue closed. Withdrawn cases are not mentioned, even though the 12 cases that were included in the Reynolds Audit constituted 0.8% of the job center sample and 0.5% of the income support center sample. (Faust 2d Rpt. ¶ 60)
The City defendants claim that they decided to draw audit samples from the NYCWAY and EVR databases, knowing that they might be under-inclusive or otherwise imperfect, because HRA does not maintain a computer database capable of tracking applications that are withdrawn on the same day they are filed. See Smith Supp. Dec. ¶ 8 (“[T]here is no computer database that contains all incidents of applications filed at the Centers.”) (emphasis in original). Further, the City defendants hoped to avoid the pitfalls they experienced in connection with the aborted July 26, 1999 hearing where the audit samples were drawn manually using control

cards. (Bush Decl. ¶¶ 4–5; Dep/Smith/20–23) Ultimately, the City defendants concluded that “the databases [were] the best available approximation of the universe of applicants,” (Smith Decl. ¶ 19), and that auditing withdrawn cases would not have yielded additional useful information.
In the Court’s view, the Hobson’s Choice depicted by the City defendants was self-imposed. It is noteworthy that despite the City defendants’ acknowledgment on July 26, 1999 that their existing audit results were fundamentally flawed, HRA personnel were drawing cases from the NYCWAY database less than two weeks later. While courts rarely find fault with a litigant who proceeds with alacrity, in this case the City defendants’ hastily-conceived sampling protocol spawned an array of complex statistical issues that might have been avoided.
The City defendants acknowledge that “some of the peculiarities of the computer databases selected were not fully evident until the [ ] Reynolds audit was complete[.]” (Smith Decl. ¶ 19) See also O’Neill Rpt. ¶ 19 (referring to the “significant time constraints [the City defendants] faced in completing the audit.”); Tr/O’Neill/86 (“Q: But, Dr. O’Neill, it was *369 your earlier testimony, wasn’t it, just a few minutes ago, that you in fact knew that withdrawn cases are purged at the time you prepared this report? Isn’t that correct? A: I said that I believed that I was conscious of something like that. Honestly, it was not something that I had focused on. It was something that was always a kind of fuzzy area.”); Dep/Elbaz/86–87 (“Q: Do you know why, on approximately August 11, a sample was selected from a second data set?” “... A: A lot of this happened very quickly because of the pressure that I was under to produce something right away.”). Against this backdrop, the City defendants’ reasons for relying exclusively on the NYCWAY and EVR databases for the Reynolds Audit have the earmarks of post hoc rationalization.
This is most evident in Dr. O’Neill’s second supplemental declaration, dated January 7, 2000, in which she discusses for the first time various statistical approaches for testing and compensating for over- and under-representativeness in samples. Dr. O’Neill’s second supplemental declaration—which easily surpasses her main expert report in length and complexity—was precipitated by matters raised by plaintiffs during the portion of the evidentiary hearing conducted in December 1999. Plaintiffs, in turn, responded with a third expert report challenging the appropriateness of the corrective techniques employed by Dr. O’Neill as well as the results of her analyses. Such successive rounds of increasingly complex submissions would have been obviated had the
11

Reynolds v. Giuliani, 118 F.Supp.2d 352 (2000)
City defendants taken the time to inform themselves of the “peculiarities” of the databases on which they chose to rely.11 11 Plaintiffs’ expert testified that the NYCWAY database
was a poor choice, and that the shortcomings of the EVR system should have been addressed—either by reprogramming or by some other means—before HRA committed its resources. (Tr/Faust/70) Although the City defendants claimed that its EVR database was the best available option, and that manual control cards are not uniformly maintained at all centers, plaintiffs’ expert responded persuasively:
If you want to do a valuable audit, you have to have reliable data somewhere. It has to be in the computer or it has to be in the manual records. Otherwise you can’t do a reliable audit. Tr/Faust/70.
Turning to the merits, it is useful to briefly explore why certain withdrawn and rejected cases may have been excluded from the sampling frame. New applications are initially entered into the State-run WMS database, which then transmits relevant information to the NYCWAY and EVR databases overnight on a daily basis. (Dep/Elbaz/63–67) However, applications withdrawn on the same day they are filed are automatically purged from the WMS system before a record of those applications is transferred to the NYCWAY or EVR databases. (Dep/Elbaz/194–97; Dep/Parker/110) On the other hand, if an EVR appointment is made for an applicant before his case is withdrawn, then the EVR system records (and preserves) the application without regard to the nightly WMS data transfer. Thus, there are only two ways in which a withdrawn application could enter the NYCWAY or EVR databases: (1) the application is not withdrawn on the WMS system on the same day it is entered into that system, in which case it will be transferred to the NYCWAY and EVR systems overnight; or (2) an EVR appointment is scheduled for an applicant before his application is withdrawn, in which case the EVR system will preserve a record of the application. (Faust 2d Rpt. ¶¶ 72, 73).12 12 Of the twelve withdrawn cases in the Reynolds Audit
sample, seven had a computer-generated EVR appointment form in their case file and three were withdrawn some time after the date of application. (Jeffrey Decl. ¶¶ 28–29) Of the remaining two cases, one file was not located and the other contained insufficient information. (Id. at ¶ 26)
Applications which are rejected on the same day they are filed may also be excluded from the NYCWAY and EVR databases, though the record is considerably *370 murkier

as to how and when that might occur. (Dep/Elbaz/190–93 (opining that the answers to such questions lie within a labyrinth of computer programming code)) Ultimately, plaintiffs were unable to do more than speculate as to the number of rejected cases, if any, that may have been excluded. (Faust 2d Rpt. ¶ 29; Faust 3d Rpt. ¶ 41; Tr/Faust/367, 371–73) For that reason, the Court will focus instead on withdrawn cases and how their relative absence from the sample may have skewed the audit results. Nevertheless, the possibility that even a small number of rejected cases were inadvertently excluded from the sample raises concerns. According to the City defendants’ own calculations, over the three-month audit period rejected cases exhibited significantly higher rates of inappropriate denials of immediate needs cash grants than accepted cases (39.4%—47.9% for rejected cases versus 8.8%—14.7% for accepted cases). (O’Neill Sec. Supp. Decl., Tbl. 11; Tr/O’Neill/481) Inappropriate denials of expedited food stamp applications were also much more prevalent among rejected cases than accepted cases (30.8%— 41.0% versus 13.8%—19.8%). (Id. at Tbl. 15) Thus, the use of a database which may have excluded a segment of rejected cases could be a source of error.13 The City defendants’ expert report does not address the potential impact of purging rejected cases from the sampling frame. (Tr/O’Neill/100)
13 Another shadowy issue is the effect, if any, of the NYCWAY database automatically overwriting old data, thereby obliterating instances of multiple applications. It may be reasonable to infer that applicants who filed more than one application experienced difficulties with their initial applications. (Faust 2d Rpt. ¶ 78) However, the Court cannot draw any conclusions about this potential source of bias because the City defendants did not investigate it.
As mentioned earlier, only 12 withdrawn cases appear in the Reynolds Audit. Those cases constitute just 0.8% of the job center audit sample, a figure that plaintiffs demonstrated is grossly under-inclusive of the true population of withdrawn cases.
Plaintiffs performed tabulations of the true population of withdrawn cases based on two different sources. One set of population disposition data was derived from Job Center Applicant Reports prepared by HRA’s Office Policy and Program Analysis (“OPPA”). A second set of tabulations was done by counting the number of withdrawn cases appearing on the Daily Activity Logs maintained by job centers. (Jeffrey Decl. ¶ 5)14 Tabulations from the OPPA reports indicate that for the three-month audit period, 27.8% of those persons categorized as seeking assistance did not continue their application past the financial planning interview. (Jeffrey
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Reynolds v. Giuliani, 118 F.Supp.2d 352 (2000)

Decl. ¶ 7) Plaintiffs’ review of the Daily Activity Logs indicated that 17.5% of those seeking assistance withdrew their applications at or before the financial planning interview. (Id. at ¶ 14)15 These two figures of 17.5% and 27.8% are an upper and lower estimate of the true number of withdrawn applications at job centers.16
14 Tabulations could not be performed for income support centers for lack of comparable data sources.

15

Because of inconsistencies in the way Daily Activity

Logs are utilized at different job centers, plaintiffs were

unable to decipher notations made in the logs at six job

centers. Consequently, plaintiffs’ tabulations do not

include those centers.

tabulations of withdrawn cases as percentages of (1) persons seeking cash assistance, and (2) persons seen by a financial planner. (Faust 3d Rpt. ¶¶ 23–27) His results for the three-month audit period, 26.0% and 18.8%, respectively, are not materially different than the figures in the Jeffrey declaration.
Plaintiffs’ expert performed a binomial test of statistical significance, for all categories of disposition, on the percentages generated by the Reynolds Audit sample and the OPPA reports. Plaintiffs’ expert similarly compared the percentage of withdrawn cases in the audit sample with the *371 Daily Activity Log tabulations. The respective percentages may be summarized as follows:

16

Responding to arguments advanced by the City,

plaintiffs’ expert recalculated the OPPA report

Disposition Status

Audit Sample

OPPA Rpts

Activity Logs

AP

(pending)

3.0

3

–

SI

(single issue)

6.1

4

–

AC

(accepted)

46.6

28

–

RJ

(rejected)

19.5

18

–

SI/CL (SI closed)

24.1

20

–

WD

(withdrawn)

0.8

28

17

For the AP (pending), SI (single issue), RJ (rejected) and SI/CL (single issue/closed) categories of disposition, there is little disparity between the sample and population figures, and the differences are not statistically significant. (Faust 2d Rpt. ¶ 64) However, for AC (accepted) cases and WD (withdrawn) cases, the differences (46.6% versus 28%, and 0.8% versus 17%–28%, respectively) are statistically significant beyond the 0.001 level. A finding that a disparity is statistically significant “at the 0.001 level” means that the

chance is less than one in a thousand that the disparity occurred by chance. (Tr/Faust/286)17 17 For a more detailed discussion of statistical tests and
levels of significance, see infra, section I.B.4.
As mentioned at the outset, the City defendants do not dispute that withdrawn cases were largely excluded from the Reynolds Audit sample. Rather, they argue that plaintiffs failed to demonstrate that the absence of
13

Reynolds v. Giuliani, 118 F.Supp.2d 352 (2000)
withdrawn cases could have biased the audit results in favor of job centers. The City defendants further claim that withdrawn cases implicate, at most, only one of the several issues being audited. (City Defs.’ Post–Hearing Response Mem. at 17; O’Neill Sec. Supp. Decl. ¶ 5) This Court disagrees.
The failure to capture withdrawn cases in the audit sample necessarily biases the results by over-representing the other dispositions, particularly accepted cases. (Faust 2d Rpt. ¶ 80) As indicated above, accepted cases have significantly lower rates of inappropriate denials for immediate needs cash grants and for expedited food stamps than rejected cases. For immediate needs cash grants, the difference in inappropriate denials is 8.8%—14.7% for accepted cases versus 39.4%—47.9% for rejected cases. For expedited food stamps, the figures are 13.8%—19.8% versus 30.8%—41.0%. Plaintiffs argue that inappropriate denials may well be more prevalent in withdrawn cases than accepted cases, and would likely occur more frequently in job centers given their more rigorous application process. Indeed, given this Court’s previous finding that job centers were improperly deterring individuals from submitting applications, see Reynolds I, 35 F.Supp.2d at 343, the absence of withdrawn cases raises serious concerns that the audit results are biased in favor of job centers.
This concern is heightened by evidence presented by plaintiffs suggesting that some applicants are still improperly deterred from filing applications. The Daily Activity Logs from seven job centers contain handwritten entries suggesting that applicants withdrew their applications for assistance based on inaccurate information concerning eligibility criteria. (Jeffrey Supp. Decl., App. I) Some of the reasons listed for withdrawals, e.g., missing documents, applicant being under 21 years of age, or appearing at the job center without a spouse, echo problems discussed in Reynolds I. See Reynolds I, 35 F.Supp.2d at 344–45.
*372 It may be, as HRA Executive Deputy Director Patricia M. Smith asserted in her supplemental declaration dated January 7, 2000, that job center staff are simply noting legitimate issues of ineligibility in the Daily Activity Logs. (Smith Supp. Decl. ¶ 22)18 The City defendants argue that “it is not enough to simply look at the very brief annotations in the Job Center daily logs and conclude that unlawful diversion is occurring.” (City Defs.’ Post–Hearing Mem. at 12) That too, may be true, and the Court does not view the Daily Activity Logs as conclusive proof of unlawful diversion. However, the Court found such practices of unlawful diversion existed in Reynolds I; it is the City defendants’ burden on this

motion to demonstrate that their corrective action plan and other remedial measures have put an end to those practices. At a minimum, the Daily Activity Logs raise doubts about whether unlawful deterrence continues to occur at job centers, and they compound the danger of having withdrawn cases essentially unrepresented in the audit sample. The City defendants have not adequately investigated and resolved these questions. 18 It should be noted that in October 1999, HRA relieved
job centers of the obligation to maintain Daily Activity Logs.
Similarly, the City defendants failed to adequately support their theory that withdrawn cases are only relevant for examining issues of separate Medicaid and food stamps eligibility determinations. Applicants who withdraw applications for cash assistance but continue their applications for food stamps and Medicaid must be screened for eligibility for expedited food stamps; they are also entitled to notice of their eligibility for ongoing food stamps and Medicaid. (Compare Tr/Smith/22–26 with Tr/O’Neill/489–91) In fact, of the twelve withdrawn cases in the audit sample, seven were reviewed by auditors for whether a correct determination of eligibility for expedited food stamps had been made. OQA’s auditors found that in one of those instances, benefits had been wrongly denied. (Tr/Faust/417–18) One of the twelve withdrawn cases was evaluated for whether a correct determination of eligibility for an immediate needs grant had been made. In that case, the determination was correct. Id. While the City defendants suggest that such partial withdrawals are uncommon, (City Defs.’ Post–Hearing Mem. at B–4), they offer no concrete proof to substantiate that assertion. In sum, the Court finds that the absence of withdrawn cases from the audit sample significantly undermines the reliability of the audit results.
4. The Sample Is Statistically Unrepresentative Of The NYCWAY And EVR Computer Databases From Which It Was Drawn The City defendants do not dispute that the Reynolds Audit sample is unrepresentative of the NYCWAY and EVR computer populations from which it was drawn. Instead, the City argues that the deviations between the sample and these populations are not large enough “to seriously influence the results of the audit” and that “for all practical purposes the audit sample provides a reliable representation of the population from which it is drawn.” (O’Neill Rpt. ¶ 27) The Court disagrees that the statistical deviations at issue are small enough to be treated lightly,
14

Reynolds v. Giuliani, 118 F.Supp.2d 352 (2000)
and it declines the City’s invitation to take a leap of faith and presume that these deviations did not bias the sample results.
The City defendants’ expert elected to perform chi-square tests of representativeness of the audit sample to the computer populations. In this context, the chi-square test measures the extent to which the audit sample was drawn from the computer database population through a random, and therefore reliable, selection process.19 The chi-square calculation results *373 in a number that may be compared to a table of “critical values” for different levels of significance. (Pls.’ Ex. 112) Level of significance is a measure of the probability that an outcome occurred randomly. If the chi-square result exceeds the critical value listed at a certain level of significance, then the disparity may be attributable to non-random sampling error. A level of significance at the “.05 level” corresponds to two “standard deviations,” while a level of significance at the “.001 level” corresponds to three “standard deviations.” “Social scientists consider a finding of two standard deviations significant, meaning there is about one chance in 20 that the explanation for a deviation could be random and the deviation must be accounted for by some factor other than chance.” Waisome v. Port Auth., 948 F.2d 1370, 1376 (2d Cir.1991). A finding that a disparity is statistically significant at the .001 level means that the probability is less than one in a thousand that the disparity occurred by chance.
19 See generally NAACP v. City of Mansfield, Ohio, 866 F.2d 162, 167 (6th Cir.1989) (“A chi-square value is a test of association which measures deviations from expected behavior. Certain deviations are expected to occur as a pattern of chance. However, at some point a discrepancy becomes so large that it is no longer expected to occur as a result of chance alone.”).
Using the chi-square test to compare disposition status (i.e., accepted, rejected, closed, etc.) between the sample and the computer database population, the City defendants’ expert concluded that the differences were “somewhat larger than we would expect if pure sampling error were the only source of divergence (a Chi-square test).” (O’Neill Rpt. ¶ 27) In other words, the sample failed the chi-square test. Plaintiffs’ expert replicated the chi-square test comparing sample dispositions with the computer database population and found that the results did not pass the test at any level of significance. (Pls.’ Ex. 109)20 In fact, he characterized the results as “way off the chart.” (Tr/Faust/287)21 20 Plaintiffs performed the chi-square test for the
preliminary audit sample of 1,720 cases and the final

sample of 1,893 cases. The chi-square critical value at the .0001 level of significance, four degrees of freedom, is 18.464. The chi-square value comparing the job center sample to the NYCWAY and EVR databases is 147.89 and 34.27, respectively. For the income support center sample, the corresponding figures are 136.06 and 27.61. (Pls.’ Ex. 109; Tr/Faust/287–88)

21

The City defendants mischaracterize Mr. Faust’s

testimony concerning the so-called “10% rule of

thumb.” (City Defs.’ Post–Hearing Mem. at B–7). Mr.

Faust explained that this rule applies to non-response

data, not to statistical disparities. (Tr/Faust/424–26;

Faust 3d Rpt. ¶ 8)

One possible source of non-sampling error may be the use of two separate computer database populations, i.e., NYCWAY and EVR. The EVR database contains approximately 7,000 more cases than the NYCWAY database, principally because the EVR system preserves multiple applications, whereas the NYCWAY system overwrites data and only includes the most recent application on file. (Elbaz Decl. ¶¶ 19–20)22 Plaintiffs identified a number of significant differences in application dispositions between these computer populations. (Faust 2d Rpt. ¶¶ 99–100; Tbl. E) Another source of non-sampling error may be the fact that many case files could not be located and retrieved from the centers, thus requiring the City defendants to rely heavily on “supplemental” cases selected from the NYCWAY database.23
22 The City defendants’ expert report failed to mention this disparity. (Tr/O’Neill/94–96)

23

This latter issue is addressed below in section I.B.5.

Although the City defendants performed additional tests of representativeness (e.g., comparing the audit sample with only the EVR database on the characteristic of household composition, and comparing disposition status after weighting the sample results), problems persisted. With respect to household composition (i.e., the number of adults and children in the applicant *374 household), plaintiffs’ expert found the differences between the sample and database population to be statistically significant beyond the .001 level. (Faust 3d Rpt. ¶ 20)24 The City defendants’ use of statistical weighting to compensate for discrepancies in the sample and population distributions raises additional doubts. For
15

Reynolds v. Giuliani, 118 F.Supp.2d 352 (2000)
example, the absence of withdrawn cases cannot be corrected by weighting because there are only 12 of them in the audit sample. (Faust 3d Rpt. ¶¶ 64–66) As plaintiffs’ expert explained: 24 Plaintiffs’ expert performed a further chi-square test on
what he believed to be a more appropriate comparison: sample cases from the EVR database versus the EVR database. This time, the differences in household composition were statistically significant at the .02 level. (Faust 3d Rpt. ¶ 21)
In contrast, the City defendants’ expert statistician conceded that she never performed a chi-square test on her household composition comparison (O’Neill Supp. Decl. Tbl. 19) before presenting it to the Court. (Tr/O’Neill/488) Instead, the City defendants’ expert described the relevant distributions as “quite close,” thereby “leading to the conclusion that the sample is more representative of the universe than one might conclude looking solely at disposition status.” (O’Neill Supp. Decl. ¶ 42)
A: ... If you have a certain category that has missing cases, for instance, and you have some cases from that category in your sample, then you can weight it to correct for the cases that are missing. If you have no cases from that category in your sample, then you can’t correct for it by weighting.
Q: And that would be the withdrawn cases[?]
A: Yes. In other words, in my opinion, the withdrawn cases are supposed to be 19 to 26 percent of all the job center cases. Now, there are only 12 cases, withdrawn cases, in the sample. And there’s no way you could weight that up to be more than the population. But, for instance, if you had a good proportion of withdrawn cases and you had reason to believe—but you should investigate this—you had reason to believe that the withdrawn cases you have are similar to the withdrawn cases you don’t have, then you can weight them to account for the withdrawn cases you don’t have.
(Tr/Faust/399–400) Unable to refute the statistical tests showing that the audit sample is unrepresentative of the databases from which it was drawn, the City defendants accuse plaintiffs of utilizing “an unrealistic standard of statistical purity,” (City Defs. Response Mem. at 11), and claim that the sample is representative enough to be deemed reliable.

These arguments are unpersuasive.
This Court recognizes that “in deciding whether a sample is adequate, practical limits to fact finding precision must be considered.” Rosado, 322 F.Supp. at 1181. However, both the chi-square and binomial tests of statistical significance are recognized by courts as being valid means of assessing the representativeness of a sample. See, e.g., Castaneda v. Partida, 430 U.S. 482, 496 n. 17, 97 S.Ct. 1272, 1281 n. 17, 51 L.Ed.2d 498 (1977); Board of Educ. of City School Dist. of City of New York v. Califano, 584 F.2d 576, 585 n. 29 (2nd Cir.1978), aff’d, 444 U.S. 130, 100 S.Ct. 363, 62 L.Ed.2d 275 (1979); Jones v. New York City Human Resources Admin., 391 F.Supp. 1064, 1071 (S.D.N.Y.1975), aff’d, 528 F.2d 696 (2d Cir.1976). The sample consistently failed these tests of reliability, often by wide margins. The Court is unwilling to accept the City’s ipse dixit that the sample is nonetheless reliable, particularly since its expert is unable to quantify its reliability or cite other factors which might offset the chi-square results and provide some guarantees of trustworthiness. *375 25 25 It is noteworthy that the City defendants’ expert
statistician never informed the Court of the extent to which the sample is unrepresentative of the NYCWAY and EVR databases based on the chi-square test. (Compare Tr/O’Neill/55 (“In general one could not say that they are totally different. They are really fairly close. They don’t make it statistically, but nonetheless they are reasonably close.”) with Tr/Faust/287) (“It is obviously much, much higher.... Even the figures for EVR are off the chart. But the NYCWAY figures are way off the chart.”)
Another detail the City defendants’ expert avoided was that HRA recently awarded a $2.7 million grant to the Center for the Study of Business and Government at Baruch College, where she is the director. The purpose of the grant is to assist HRA to better understand the impact of implementing job centers and to examine methods for improving center management and performance. (Tr/O’Neill/479)
The Court concludes that the sample could not have been drawn from the population of applicants in the NYCWAY and EVR databases by a valid process because the disparities between the sample and the data set are statistically significant. The sample’s failure to pass generally accepted tests of statistical reliability further erodes confidence in the audit results.
5. The Sample’s Non–Retrieval Rate Is Significant And Constitutes Another Source Of Potential Error The Reynolds Audit was originally intended to include
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Reynolds v. Giuliani, 118 F.Supp.2d 352 (2000)
approximately 1,800 cases selected from a single database (an average of 25 cases per month per center, with a minimum of 20 cases per center, for three months). (O’Neill Rpt. Ex. B at 3) The City decided to use two different databases after discovering drawbacks in the NYCWAY database. Thus, the City defendants generated two lists of cases to be retrieved and audited for the Reynolds Audit. The primary list was drawn from the NYCWAY database for May 1999 and from the EVR database for June and July 1999. The supplemental list was drawn from the EVR database in May 1999 and from the NYCWAY database in June and July 1999. Using the two databases, the City defendants’ selection protocol required that “if more than 10% of a center’s primary sample for a month can not be audited (due either to missing files, missing information in the files provided, or a case being inappropriate for audit), all cases from the supplemental sample for that month are requested from the center.” (O’Neill Rpt. Ex. B at 4)
In practice, the City defendants experienced great difficulty retrieving the prescribed number of case files from centers and, in fact, were forced to tap the supplemental list every month for every center. (Faust 3d Rpt. ¶ 44); (Jeffrey Decl. Tbl. 4) Plaintiffs’ tabulations indicated that the City sought to retrieve a total of 3,933 cases from job and income support centers. (Pls.’ Exs. 7–12) Of these 3,933 case files, 1,299 (or 33%) were not retrieved for auditing. (Faust 2d Rpt. ¶ 103, Ex. F) Even using two samples, 8 of the 28 centers (29%) were unable to find a minimum of 60 cases over the three-month audit period. (Faust 3d Rpt. Ex. A) Four of those eight centers were job centers. The City defendants’ expert acknowledged that “[s]ome of the centers had very poor responses. A few of them had quite low samples.... I know that it is generally true that there were a few centers that fell far short of their sample targets.” (Tr/O’Neill/127)
The City defendants also failed to audit a large number of cases where records were retrieved. Of the 2,634 (3,933 minus 1,299) case files retrieved as part of the Reynolds Audit, only 1,893 were audited, leaving 741 cases (or 28%) found but not audited. The City defendants argued that of these 741 cases, “some 600” (City Defs.’ Post–Hearing Mem. at B–10) were properly excluded for various reasons,26 but they *376 specifically identified only 338 such cases. (Pls.’ Ex. 13) The City defendants do not and presumably cannot account for the balance of 403 cases that were excluded.
26 For example, the City defendants excluded DASIS cases and cases on remand from fair hearings because they did not present the application issues being audited. (City Defs.’ Post–Hearing Mem. at B–10)

It also appears that the City defendants failed to audit a significant number of cases based on “insufficient documentation,” (Pls.’ Ex. 13) where the files did, in fact, contain enough information to be audited. (Pls.’ Exs. 21–36; Jeffrey Decl. ¶ 39) The only document whose absence would disable auditors from reviewing a case is the application, i.e., the Applicant Job Profile (“AJP”). (Dep/Mortley/57–58; Dep/Plummer/66; Dep/Ricks/60) Plaintiffs reviewed 169 of the cases not audited due to missing information and found that 12% of those case files contained an AJP for the relevant audit month. (Jeffrey Decl. ¶ 39)
The City defendants’ expert failed to examine why so many cases were not retrieved from the centers, or whether their absence could have biased the audit results. Plaintiffs’ expert, on the other hand, studied the significance of these missing cases and found a positive correlation between the percentage of unaudited cases and poor-performing centers. (Faust 3d Rpt. ¶¶ 47–56; Tr/Faust/437–38) Plaintiffs’ expert also determined that late arriving cases were more likely to have a higher proportion of rejected cases, which in turn exhibited higher percentages of inappropriate denials of immediate needs grants and expedited food stamps. (Faust 3d Rpt. ¶¶ 69–73) The Court finds these analyses to be credible. It is fair to infer that unaudited cases would have been relatively poor performers, and that their absence from the Reynolds Audit is a significant source of potential error.
Unable to offer analyses of their own, the City defendants contend that the non-retrieval rate for the Reynolds Audit is comparable to non-response rates obtained in other surveys, such as the Current Population Survey (“CPS”) conducted monthly by the Bureau of Labor Statistics and the Bureau of the Census. The Court rejects this analogy. According to Dr. O’Neill, the CPS has a survey non-respondent rate of 6.5% and, with respect to missing answers on questionnaires, a non-response rate near 10%. (O’Neill Decl. ¶ 13) Here, while the non-retrieval rate for the Reynolds Audit is difficult to ascertain with precision (largely because the City defendants prepared vague and incomplete tabulations), it is well above 10% by any conservative estimate.
The Court also rejects the City defendants’ assertion that correlations found by plaintiffs’ expert can be neutralized through statistical weighting. (City Defs.’ Post–Hearing Mem. at B–13) As plaintiffs’ expert explained, weighting is viable only where the characteristics of the missing cases are known. (Tr/Faust/400) (“[Y]ou see, that’s the trouble. You don’t know what the ... performance is in the
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Reynolds v. Giuliani, 118 F.Supp.2d 352 (2000)
missing cases. There’s nothing in the sample you can weight for them.”) The City defendants would presume that unaudited cases perform as well as audited cases, when in fact the only evidence on this issue indicates that their performance is worse.

6. The Audit Instrument and Procedures Were Flawed

Plaintiffs’ expert characterized the Reynolds Audit

instrument as “one of the most poorly designed

instruments I have ever seen out of a professional

organization which has research and auditing personnel

on staff.” (Faust 2d Rpt. ¶ 131) The Court finds most of

plaintiffs’ criticisms of the instrument to be material and

well-founded. In particular, the Court agrees that the audit

instrument omitted relevant questions, (Pls.’ Rev.

Proposed Findings of Fact and Conclusions of Law, ¶¶

97, 98, 99, 101, 102); was confusing and incomplete in

certain respects, (id. at ¶ 104, 106, 107, 108, 110); and

should have been accompanied by written instructions for

auditors, (id. at ¶ 113; Faust 2d Rpt. ¶ 156). The City

defendants’ own auditors experienced some difficulty

understanding and using the instrument in a consistent

*377 manner. (Dep/Plummer/33 (“We found a lot of grey

areas with the instrument that we used in August.”);

Dep/Plummer/39–40;

Dep/Mortley/78–79;

Dep/Ricks/74–75; Dep/Abdullah/82–83)

7. Conclusion: The Results Of The Reynolds Audit Are Entitled To Only Minimal Weight [4] The foregoing deficiencies with the Reynolds Audit do not constitute the entirety of plaintiffs’ objections. However, they are sufficient, when considered together, to vitiate the probative value of the audit results. The City defendants make several resourceful arguments touting the reliability of the audit results, asserting that job centers perform better than income support centers, and claiming that job center performance has improved over time. While those arguments have some surface appeal, they do not withstand close scrutiny.
For example, the City defendants asserted that even if some number of rejected cases are excluded from the NYCWAY and EVR databases, there is no reason to believe that their absence would bias the audit results in favor of job centers. According to the City, the Reynolds Audit established that job centers generally outperform income support centers (O’Neill 2d Supp. Decl., Tbls. 12 and 16), and adding more rejected cases to the sample would not close that disparity. (City Post Hearing Mem. at B–5, n. 2)

The problem with this argument (and similar ones advanced by the City defendants) is its reliance on a faulty premise: that the audit results are fundamentally reliable, and therefore provide a steady framework upon which such inferences may be drawn. That is not the case. Plaintiffs did far more than establish that the audit results are merely imprecise. The consequences of, inter alia, excluding withdrawn cases from the sampling frame do not manifest themselves by distorting an isolated figure by a percentage point or two. They are problems which render the Reynolds Audit statistically unrepresentative of the universe of applications and frustrate any responsible effort to project from the sample to the universe. In short, given the array of unanswered questions left in the wake of the Reynolds Audit, it is difficult to trust any of the extrapolations made by the City defendants comparing the performance of job and income support centers, or assessing the performance of job centers over time. It is safe to conclude only that the centers’ true performance figures are probably much different than those presented by the City defendants.
Having failed to independently investigate the sources of error identified by plaintiffs, the City defendants resort to arguing that the evidence fails to show an actual bias in favor of job centers. Thus, the City defendants highlight the fact that plaintiffs’ expert offered no opinion as to whether job center performance has improved over time, how they compare with income support centers, or whether the corrective action plan is being successfully implemented. (City Defs.’ Post–Hearing Mem. at 12; Tr/Faust/355–56) The City argues that these uncertainties reveal gaps in plaintiffs’ case. In fact, the opposite is true. The City defendants, as the proponents of the audit, bear the burden of assuring that the results lack statistical bias. In this Court’s view, they have not done so. Once plaintiffs had thoroughly undermined the structural underpinnings of the Reynolds Audit, they were not required to identify the direction in which it would topple. Nevertheless, at least with respect to the absence of withdrawn cases, plaintiffs convinced this Court that the deck was stacked in favor of job centers.
Accordingly, the Court turns to the other items of proof put forth by the City defendants in support of their motion to vacate the preliminary injunction.
C. Spot–Checkers, PERT Audits and Other Monitoring Devices Shortly after the preliminary injunction issued in January 1999, FIA implemented *378 a program of sending spot-checkers to job centers and income support centers. Spot-checkers make unannounced, anonymous visits to
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Reynolds v. Giuliani, 118 F.Supp.2d 352 (2000)

centers where they describe their (fictitious) needs and ask for an application. The spot-checkers then report back on their experiences to FIA. Where a spot-checker is not permitted to file an application on the day of their visit, or is treated in an unprofessional manner, FIA takes corrective action. (Smith Decl. ¶¶ 10–11; Flaum Decl. ¶¶ 20–40; Walton Decl. ¶¶ 4–18) The summaries of spot-checker reports offered by the City defendants show a downward trend in applicants being turned away from job centers and income support centers since January 1999. (City Defs. Exs. 18, 19)
In the Court’s view, the spot-check program is a useful, albeit limited, management tool for FIA. Spot-checkers do not ascertain whether their applications will actually be accepted for processing, and whether they will have the opportunity to meet with a financial planner. Once they receive an application from a center, they leave. (Dep/Walton/48–49) The program’s effectiveness has also been tempered by the failure of spot-checkers to adequately vary the scenario they present when requesting an application. (Dep/Walton/21–22) When this was finally done in August and September 1999 by having the spot-checkers claim to be aliens, it caused a modest rise in the rate of inappropriate denials of the right to obtain an application. (City Defs.’ Ex. 18)
Apr–99

In addition to the spot-checker program, which FIA intends to continue indefinitely, the City defendants point to the results of “fair hearing” appeals of agency determinations as another monitoring device evidencing superior job center performance. These appeals are conducted by an administrative law judge employed by the New York Office of Temporary and Disability Assistance (“OTDA”). (Dworkin Decl. ¶ 2) Since April 1999, the City defendants have used data generated by OTDA concerning the results of those hearings to tabulate “win rates” for job centers and income support centers. (Dworkin Decl. ¶¶ 14–17; Dep/Dworkin/18)
According to the City defendants, the respective win rates for job and income support centers for application-related issues may be summarized as follows:
CITY DEFENDANTS’ WIN–RATE CALCULATION

May–99

Jun–99

Jul–99

Job Centers

68.8%

77.2%

79.1%

85.9%

IS Centers

84.3%

75.5%

80.3%

84.9%

(City Defs.’ Exs. 10, 11) These figures hardly support the City defendants’ assertion that job center determinations fare better than income support center determinations on appeal.

recalculate as follows:
27 This disposition is listed as “other” in the “issues won” section of the fair hearing outcome summaries. (City Defs.’ Ex. 10)

Moreover, the figures themselves are somewhat illusory because FIA excludes from its calculation instances where the administrative law judge has remanded a case for insufficient information. (Dworkin Decl. ¶ 28) If remands are factored back into the equation, and the City’s win rate is calculated by dividing total wins (affirmances, defaults, appellant withdrawals and dismissals for lack of jurisdiction27) by total appeals (affirmances, defaults, appellant withdrawals, dismissals, agency withdrawals, reversals and remands), the figures
May–99

RECALCULATED WIN–RATE (with remands counted as losses)

Jun–99

Jul–99

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Reynolds v. Giuliani, 118 F.Supp.2d 352 (2000)

Job Centers IS Centers

50.0% 49.0%

49.8% 56.0%

58.0% 58.128

28 Percentages are not provided for April 1999 because the underlying data summaries for that month were not provided in City Defs.’ Exs. 10 and 11.
*379 If the win rate is calculated, as plaintiffs suggest, on the basis of hearings held, and appellant defaults and jurisdictional dismissals are not counted as wins for the City, then the figures plunge further:

RECALCULATED WIN–RATE (on the basis of hearings held where a decision on the merits is
rendered)

May–99

Jun–99

Jul–99

Job Centers

29.6%

32.9%

36.7%

IS Centers

33.5%

34.1%

33.5%

(Pls.’ Mem. at 40, Tbl. 5) The Court recognizes that the recalculated figures are imprecise. FIA does not investigate remands or appellant withdrawals, so the data only permits rough generalizations about such dispositions. However, the re-worked percentages provide a better indicator of the centers’ appellate win rate.
The City defendants also contend that other oversight activities and initiatives for self-correction have improved and intensified. When the preliminary injunction issued in January 1999, OQA had just begun sending its newly established PERT teams into job and income support centers to conduct on-site performance reviews. Among other things, the PERT teams observe center operations and audit cases files. (Smith Decl. ¶ 13; Abdullah Decl. ¶ 10) OQA’s other on-site review program, QC Doctor, is designed to identify and correct problems at individual centers through retraining and other initiatives. (Smith Decl. ¶ 14; Abdullah Decl. ¶ 9)
Centers are also subject to ongoing federal and state

performance reviews for compliance with food stamp program procedures. In that regard, State defendant Wing and the OTDA conducted “Food Stamp Program Access Reviews” at nine job centers between July 1999 and October 1999. (Pls.’ Exs. 72–81) Among the more serious problems identified by the State reviewers were untimely or incorrect determinations of expedited food stamps eligibility, failure to make separate eligibility determinations, and failure to provide necessary notices. (Jeffrey Supp. Decl. ¶¶ 58–62) The centers also had trouble retrieving case files; they located and produced only 178 of the 288 files requested for review. (Jeffrey Supp. Decl. ¶¶ 55–56) The City defendants, seeing this glass as half-full, emphasize that the OTDA has approved HRA’s center-specific corrective action plans formulated in response to the access reviews. (Smith Supp. Decl. ¶ 23; City Defs.’ Ex. 36)
Finally, the City defendants point out that job center operations have been under scrutiny within the context of this litigation, notably through the job center inspections
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Reynolds v. Giuliani, 118 F.Supp.2d 352 (2000)
conducted by plaintiffs’ counsel and the informal intervention process. The City defendants claim that neither of these mechanisms have produced evidence indicative of systemic violations of federal and state law attributable to job center conversions. Plaintiffs dispute this characterization of the proof and allege, for example, that of the 225 applicants they interviewed during job center inspections, 61 reported probable violations of law. (Landeo Decl. ¶¶ 3–6; City Defs.’ Post–Hearing Mem. at 9)
These are nettlesome but ultimately collateral disputes which the Court need not untangle. To the extent that the City defendants are correct that the evidence concerning job center inspections and informal intervention establishes only “that HRA workers make mistakes and that applicants do not always receive the treatment they deserve” (City Defs.’ Post–Hearing Mem. at 9), then this proof provides the City little assistance in meeting its burden of demonstrating a significant change in circumstances since this Court entered the preliminary injunction in January 1999.
D. The City Defendants’ Motion To Vacate The Preliminary Injunction Is Denied In Reynolds II, the Court modified the preliminary injunction by permitting HRA *380 to convert three additional job centers based largely on the City defendants’ formulation of a comprehensive corrective action plan which entailed, among other things, retraining several thousand personnel at job centers and income support centers. The Court struck a balance and allowed those conversions to proceed, but at the same time underscored the need for reliable, uniform audit procedures and statistically valid monitoring protocols. “In such a complex system, the translation of theory into practice presents unique challenges in terms of training HRA personnel and measuring the effectiveness of the Plan’s initiatives.” Reynolds II, 43 F.Supp.2d at 497.
[5] At this juncture, the City defendants are unable to proffer reliable statistical evidence of job center and income support center performance because the results of the Reynolds Audit cannot be trusted.29 While the City defendants continue to utilize a number of other tools designed to monitor and improve the centers’ performance (e.g., spot checking and fair hearing results), those devices shed little light on whether the centers are complying with federal requirements. In short, the Court can find no principled basis for vacating or otherwise modifying the preliminary injunction at this time. 29 It therefore is unnecessary for the Court to decide now

the precise level of compliance required under the Food Stamps and Medicaid Acts. Compare Shands v. Tull, 602 F.2d 1156, 1160 (3d Cir.1979) (endorsing a standard of “substantial compliance”), with Withrow v. Concannon, 942 F.2d 1385, 1388 (9th Cir.1991) (observing that “the regulations require compliance, not ‘substantial compliance.’ ”).
II. The State Defendants’ Motion To Dismiss The Complaint In response to plaintiffs’ application for preliminary injunctive relief, the State defendants moved to dismiss the complaint as against them for failure to state a claim. At the close of the January 1999 hearing, plaintiffs’ counsel conceded that preliminary injunctive relief directed against the State defendants would be premature. See Reynolds I, 35 F.Supp.2d at 340 n. 7. Consequently, no preliminary relief was entered against the State defendants, and the Court deferred reaching the merits of the State’s motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). Thereafter, as a matter of case management, the Court channeled the parties’ discovery efforts towards the City defendants’ operation and management of the centers.
The State defendants move to dismiss each of plaintiffs’ claims against them under Rule 12(b)(6) on the following grounds: (1) the State defendants are protected by Eleventh Amendment immunity; (2) plaintiffs have no cognizable private right of action for violations of the Food Stamp Act, Medicaid Act, and New York State cash assistance programs; (3) plaintiffs failed to exhaust their administrative remedies; and (4) plaintiffs fail to allege facts against the State defendants upon which relief can be granted. For the reasons set forth below, the State defendants’ motion is denied.
A. Applicable Standard In resolving a motion to dismiss, the pleadings and affidavits must be construed in favor of the plaintiff, and all doubts should be resolved in the plaintiff’s favor and against the defendants. See Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir.1998); Cohen v. Koenig, 25 F.3d 1168, 1171–72 (2d Cir.1994). A complaint may not be dismissed under Rule 12(b)(6) unless it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Black Radio Network, Inc. v. NYNEX Corp., 44 F.Supp.2d 565, 572 (S.D.N.Y.1999) (quoting Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). The
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Reynolds v. Giuliani, 118 F.Supp.2d 352 (2000)
issue is not whether the Plaintiff will ultimately prevail but whether they are entitled to offer evidence in support of their claims. See Black Radio, 44 F.Supp.2d at 572.
*381 B. Eleventh Amendment Immunity [6] [7] The State defendants contend that plaintiffs’ claims against them are barred by the Eleventh Amendment to the United States Constitution. The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. An unconsenting State is thus immune from suits in federal court brought by its own citizens, see Edelman v. Jordan, 415 U.S. 651, 662–63, 94 S.Ct. 1347, 1355–56, 39 L.Ed.2d 662 (1974), and such immunity extends to State agencies and officers acting on behalf of the State. See Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144–47, 113 S.Ct. 684, 687–89, 121 L.Ed.2d 605 (1993).
[8] The Supreme Court, however, has recognized an exception to State immunity: “a suit challenging the constitutionality of a state official’s action is not one against the state.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102, 104 S.Ct. 900, 909, 79 L.Ed.2d 67 (1984) (citing Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)); accord Burnette v. Carothers, 192 F.3d 52, 57 n. 3 (2d Cir.1999). In Ex Parte Young, the Court held that Eleventh Amendment immunity does not shield State officials acting in violation of federal law. In those circumstances, the officials’ unauthorized actions are stripped of their official character and may be challenged in a federal suit. See Ex Parte Young, 209 U.S. at 160, 28 S.Ct. at 454; accord Pennhurst, 465 U.S. at 102, 104 S.Ct. at 909. The doctrine of Ex Parte Young applies to violations of the United States Constitution as well as federal statutes, see Kostok v. Thomas, 105 F.3d 65, 68 (2d Cir.1997), and permits a plaintiff to seek prospective injunctive relief to prevent continued violations. See Pennhurst, 465 U.S. at 102–03, 104 S.Ct. at 909 (citing Edelman, 415 U.S. at 666–67, 94 S.Ct. at 1357–58) (“[W]hen a plaintiff sues a state official alleging violation of federal law, the federal court may award an injunction that governs the official’s future conduct, but not one that awards retroactive monetary relief.”); Ward v. Thomas, 207 F.3d 114, 119 (2d Cir.2000) (“[T]he Eleventh Amendment does not prevent federal courts from granting prospective injunctive relief to prevent a continuing violation of federal law.”) (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 426, 88 L.Ed.2d 371 (1985)).

[9] Plaintiffs’ claims against the State defendants fall squarely within the Ex Parte Young exception. See Reynolds I, 35 F.Supp.2d at 340 n. 8 (“the Court observes that official-capacity actions seeking prospective injunctive relief for alleged violations of federal law are not treated as actions against the State.”). Plaintiffs have named state officials, not the state itself, as defendants. (Compl. ¶¶ 16–19) Plaintiffs allege that the state officials are violating and continue to violate federal laws, including the Fourteenth Amendment to the Constitution, the Food Stamp Act, 7 U.S.C. § 2020 et seq., and the Medicaid Act, 42 U.S .C. § 1396.30 (Compl. ¶¶ 255–61, 263–66) Plaintiffs seek prospective injunctive relief, and not retroactive money damages, against the State defendants.31 See *382 Roberson v. Giuliani, 2000 WL 760300, at *9–10 (S.D.N.Y. Jun. 12, 2000) (99 Civ. 10900(DLC)) (denying State officials’ motion to dismiss claims for prospective injunctive relief for violations of the Food Stamp Act); Graus v. Kaladjian, 2 F.Supp.2d 540, 542 (S.D.N.Y.1998) (denying State defendant’s motion to dismiss claims for prospective injunctive relief for violations of the Medicaid Act).
30 The State defendants contend, and plaintiffs deny, that plaintiffs have sued them for violations of State law. See State Defs.’ Supp. Mem. at 21–23; Pls.’ Supp. Mem. at 28 n.16. Although the complaint appears to plead State law claims only against the City defendants, see Compl. ¶ 262, to the extent that plaintiffs’ requested relief is premised on the State defendants’ violations of State law, see Compl. Relief for Request ¶¶ b. (viii), e. (i), such relief is barred by the Eleventh Amendment. See Pennhurst, 465 U.S. at 104–06, 104 S.Ct. at 910–11.

31

However, this Court reserves decision on whether, if

such an issue arises, the State defendants are immune

from a claim for retroactive money damages to the

extent the federal government will reimburse the State

for a retroactive money judgment. See generally

Bennett v. White, 865 F.2d 1395, 1407–08 (3d

Cir.1989); Bermudez v. Dep’t of Agric., 490 F.2d 718,

721–24 (1973); Harrington v. Blum, 483 F.Supp. 1015,

1021–22 (S.D.N.Y.1979); Conrad v. Perales, 92

F.Supp.2d 175, 180–81 (W.D.N.Y.2000).

Relying on Pennhurst, 465 U.S. at 101, 104 S.Ct. at 908, and Seminole Tribe of Florida v. Florida, 517 U.S. 44, 75 n. 17, 116 S.Ct. 1114, 1133 n. 17, 134 L.Ed.2d 252 (1996), the State defendants assert that the Ex Parte Young doctrine is inapplicable. This argument is unpersuasive.
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The State defendants contend that since defendants Wing and DeBuono do not single-handedly oversee and supervise the State’s food stamp and Medicaid programs, respectively, this action is barred under Pennhurst because the “the state is the real, substantial party in interest.” (State Defs.’ Supp. Mem. at 11) (citing Pennhurst, 465 U.S. at 101, 104 S.Ct. at 908). This argument overlooks that Pennhurst resolved whether the Eleventh Amendment shields a State official for violations of state law, not for violations of federal law. Additionally, the Pennhurst Court reiterated that there is an “important exception to this general rule: a suit challenging the constitutionality of a state official’s action is not one against the State.” Pennhurst, 465 U.S. at 102, 104 S.Ct. at 909 (citing Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714; Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)). As noted above, this exception has since been expanded to violations of federal law.
The State defendants cite Seminole Tribe for the proposition that the Ex Parte Young doctrine is inapplicable in this action because the Food Stamp and Medicaid statutes only impose duties on the “State agency” and not on state officials. (State Defs.’ Supp. Mem. at 11–12) (citing Seminole Tribe, 517 U.S. at 75 n. 17, 116 S.Ct. at 1133 n. 17). However, the Court in Seminole Tribe described the limited situation in which the Ex Parte Young doctrine is inapplicable—“where Congress prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based on Ex parte Young.” Seminole Tribe, 517 U.S. at 74, 116 S.Ct. at 1132 (emphasis added). In fact, the Court specifically described the limited nature of its holding: “[W]e do not hold that Congress cannot authorize federal jurisdiction under Ex parte Young over a cause of action with a limited remedial scheme. We find only that Congress did not intend that result in the Indian Gaming Regulatory Act.” Seminole Tribe, 517 U.S. at 74 n. 17, 116 S.Ct. at 1133 n. 17 (emphasis added). The “detailed remedial scheme” that exists in the Indian Gaming Regulatory Act, such as delineated procedures limiting the remedies that federal courts can impose in the event of a violation, is absent in the Food Stamp and Medicaid Acts. The State defendants’ reliance on Seminole Tribe is therefore unavailing, and their motion to dismiss the complaint on Eleventh Amendment grounds must be denied.
C. Private Rights of Action [10] The State defendants contend that plaintiffs have no

private right of action for violations of the Food Stamp Act, Medicaid Act, and the State cash assistance programs under either 42 U.S.C. § 1983 or under the statutes themselves. This argument also fails.
As discussed in Reynolds I, in order to state a cause of action under Section 1983, “a plaintiff must assert the violation of a *383 federal right, not merely a violation of federal law.” Reynolds I, 35 F.Supp.2d at 340 (citing Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 1359, 137 L.Ed.2d 569 (1997)); see also Rodriguez v. DeBuono, 162 F.3d 56, 60 (2d Cir.1998). In analyzing whether plaintiffs pled violations of federal rights pursuant to Section 1983, this Court previously found that the complaint stated viable causes of action for violations of specific provisions of the Food Stamp Act, namely, 7 U.S.C. § 2020(e)(2)(B) (requiring consideration of application on same day filed); 7 U.S.C. § 2020(e)(3) (requiring determination of eligibility within 30 days from date of application); 7 U.S.C. § 2020(e)(9) (requiring provision of coupons to eligible households within 7 days of application). See Reynolds I, 35 F.Supp.2d at 340–41 (citing cases); see also Roberson, 2000 WL 760300, at *10–11 (holding violations of 7 U.S.C. §§ 2014(b), 2020(e)(2)(B) and 2020(e)(9) and their implementing regulations enforceable through Section 1983).
This Court also found that plaintiffs stated Section 1983 claims for violation of the Medicaid Act, specifically, 42 U.S.C. § 1396a(a)(8) (requiring reasonably prompt Medicaid assistance), and its implementing regulations. See Reynolds I, 35 F.Supp.2d at 341 (citing cases).32 Finally, this Court held that plaintiffs stated viable claims for violation of their Fourteenth Amendment procedural due process rights pursuant to Section 1983 in regard to receipt of food stamps, Medicaid, and cash assistance. See Reynolds I, 35 F.Supp.2d at 341 (citing cases); see also Roberson, 2000 WL 760300, at *10 n. 13 (procedural due process claim regarding receipt of food stamps enforceable under Section 1983); Graus, 2 F.Supp.2d at 544–45 (procedural due process claim regarding Medicaid enforceable under Section 1983).
32 While the Second Circuit has not determined whether implementing regulations themselves create a federal right of action that may be the predicate for a Section 1983 action, courts may consider implementing regulations in determining whether a statute creates a federal right. See Roberson, 2000 WL 760300, at *10 n. 14 (citing cases).
Plaintiffs have therefore stated viable causes of action under Section 1983. This makes it unnecessary to decide whether plaintiffs have also stated claims directly under
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the Food Stamp and Medicaid Acts pursuant to Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975). See Reynolds I, 35 F.Supp.2d at 340 n. 5 (citing cases); see also Roberson, 2000 WL 760300, at *10 n. 12.
D. Exhaustion of Administrative Remedies The State defendants argue that this action must be dismissed because “the individual plaintiffs have not pursued or exhausted their State administrative remedies or complained to the State defendants about the alleged improprieties at the City defendants’ Job Centers.” (State Defs.’ Supp. Mem. at 29, 34) This Court disagrees that exhaustion is required.
[11] [12] [13] As discussed in the preceding section, the complaint asserts viable claims against the State defendants under 42 U.S.C. § 1983 for violations of federal law. This Court has already observed that exhaustion of administrative remedies is not required for such claims under Section 1983. See Reynolds I, 35 F.Supp.2d at 341 n. 9 (citing Wilbur v. Harris, 53 F.3d 542, 544 (2d Cir.1995); Jose P. v. Ambach, 669 F.2d 865 (2d Cir.1982)); see also Patsy v. Board of Regents, 457 U.S. 496, 516, 102 S.Ct. 2557, 2568, 73 L.Ed.2d 172 (1982) (“exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to § 1983”); DeSario v. Thomas, 139 F.3d 80, 85–86 (2d Cir.1998), vacated and remanded on other grounds by Slekis v. Thomas, 525 U.S. 1098, 119 S.Ct. 864, 142 L.Ed.2d 767 (1999) (same); Roberson, 2000 WL 760300, at *11 (“[A]lthough both the Food Stamp Act and Medicaid statute require States to provide for administrative hearings *384 when requested by recipients, the State defendants fail to point out any indication of congressional intent to require exhaustion of such remedies prior to brining a Section 1983 action.”) (citations omitted).33 Accordingly, the State defendants’ motion to dismiss for failure to exhaust administrative remedies is denied.
33 It may be noted that exhaustion is not required for claims brought directly under the Food Stamp and Medicaid Acts, see, e.g., Commonwealth of Mass. v. Lyng, 893 F.2d 424, 427 (1st Cir.1990) (“the scheme of the food stamp statute does not require exhaustion”); Alacare, Inc.-North v. Baggiano, 785 F.2d 963, 967–69 (11th Cir.), cert. denied 479 U.S. 829, 107 S.Ct. 111, 93 L.Ed.2d 59 (1986) (holding no exhaustion requirement in Medicaid cases). Additionally, exhaustion of administrative remedies by individual plaintiffs may be excused as futile in cases seeking institutional reform. See generally Jose P., 669 F.2d at 868–69 (“Plaintiffs argued successfully below that ... the individual appeal mechanism is inappropriate to

resolve the systematic compliance issues raised in the class actions.”); J.G. v. Board of Educ., 648 F.Supp. 1452, 1457–58 (W.D.N.Y.1986) (“To require thousands of class members to go through individual administrative hearings, or to expect the hearing officer in one case to order system-wide change would be both impractical and futile.”), aff’d 830 F.2d 444 (2d Cir.1987).
C. Factual Predicate For Claims Against The State Defendants The State defendants contend that plaintiffs have failed to allege facts against them sufficient to state a claim. Specifically, the State defendants argue that: (1) plaintiffs have not alleged that a State policy, practice or custom deprived them of a federal right; (2) plaintiffs failed to provide notice of alleged deficiencies to the State by availing themselves of the fair hearing process; (3) plaintiffs’ allegations against the State defendants are insufficiently pled.
1. State Policy, Practice, or Custom The State defendants claim that plaintiffs’ complaint fails to allege that any violations of plaintiffs’ federal rights occurred pursuant to a State policy, custom or practice. The State defendants also contend that plaintiffs’ acknowledgment that the City defendants, and not the State defendants, operate the income support centers and job centers undermines their claims against State defendants. (Compl. ¶ 17) Essentially, the State defendants argue that they are not accountable for the City defendants’ mistakes.
Plaintiffs argue that the State defendants’ have a duty to oversee and supervise the City defendants to ensure compliance with federal requirements. Plaintiffs offer three bases for this duty to supervise. First, plaintiffs contend that the State defendants’ duty to oversee and supervise the City defendants arises as a non-separable component of their duty to administer the Food Stamp and Medicaid Acts in conformity with federal law. Thus, to the extent that claims lie against the City defendants for violations of specific provisions of the Food Stamp Act, the Medicaid Act, and the due process clause, see supra, those same claims would also lie against the State defendants for failing to ensure the City defendants’ compliance.
Second, plaintiffs claim that under the Food Stamp and Medicaid Acts, the State defendants have an independent
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duty to oversee and supervise. In that regard, plaintiffs rely on specific provisions of the Food Stamp Act and its implementing regulations, see 7 U.S.C. § 2012(n) (defining “state agency”); 7 U.S.C. § 2020(d) (describing requirements for approval of state plan); 7 C.F.R. § 275.5 (requiring State review of local agency performance); 7 C.F.R. §§ 275.16, 275.18 (describing State corrective action plans), and the Medicaid Act and its implementing regulations, see 42 U.S.C. § 1396a(a)(1) (State plan mandatory on local administering agencies); 42 C.F.R. § 435.903 (requiring State to monitor local administering agencies’ performance and take corrective action when necessary), and argue that these provisions create privately enforceable rights.
*385 Finally, plaintiffs argue that the State defendants have a duty to provide the supervision and training necessary to prevent a violation of plaintiffs’ constitutional and statutory rights. Plaintiffs contend that the State defendants have a policy, custom, or practice of failing to train and supervise adequately their employees or agents that is actionable under Section 1983.
[14] The Court turns to plaintiffs’ first theory of liability against the State defendants, i.e., that implicit in the State defendants’ duty to administer the Food Stamp and Medicaid Acts is an obligation to ensure local agency compliance with the requirements of those statutes. Since the Court finds that theory to be viable, it is unnecessary to reach plaintiffs’ remaining arguments.
States participating in the Food Stamp and Medicaid programs may choose one of two ways in which to administer benefits: designate a single State agency to implement the programs, or operate the programs on a decentralized basis using local agencies. See 7 U.S.C. § 2012(n) (Food Stamp Act); 42 U.S.C. § 1396a(a)(1) (Medicaid Act). New York has chosen to administer the Food Stamp and Medicaid Acts on a decentralized basis, and HRA is one such local administering agency.
This statutory framework completely undercuts the State defendants’ contention that they are not responsible when HRA fails to comply with requirements of the Food Stamp and Medicaid Acts. Congress placed the duty to administer the Food Stamp and Medicaid Acts on participating States, see 7 U.S.C. § 2020 (requirements for Food Stamp State plans); 42 U.S.C. § 1396a (requirements for Medicaid State plans), and that duty is non-delegable. In the context of decentralized administration of welfare programs, such as the case here, the State defendants can only fulfill their statutory obligations if they actively oversee local administering agencies (such as the City defendants) and ensure

statutory compliance. Thus, the duty to comply with federal statutory requirements is shared jointly by the State and City defendants.
Other courts have reached the same conclusion. In Robertson v. Jackson, 972 F.2d 529, the Fourth Circuit held that it was proper to enjoin the State agency responsible for administration of the Food Stamp Act to ensure that the local administering agencies fully complied with the requirements of the Act.34 In rejecting the State’s argument that it was not responsible for local agency compliance, the court cited to the Act’s regulations and Congressional history in determining that “[a]lthough the state is permitted to delegate administrative responsibility for the issuance of food stamps, ‘ultimate responsibility’ for compliance with federal requirements nevertheless remains at the state level.” Robertson, 972 F.2d at 533.
34 The fact that the decision failed to analyze whether plaintiffs’ have a private right of action against the state for enforcement under the Blessing or Cort tests is irrelevant. That Court, like this Court now does, found that the state has an enforceable obligation to oversee local administering agencies’ compliance with federal law implied in their duty to administer.
Food stamp regulations require the State to enter into a legal agreement with the USDA in which the State undertakes to administer the food stamp program in accordance with the statute, monitor compliance with federal law, and ensure that action is taken to correct deficiencies. See 7 C.F.R. §§ 272.2, 275.5, 275.16, 275.18, 275.19. Congressional history regarding the definition of “state agency,” which was amended to include “the counterpart local agencies,” see 7 U.S.C. § 2012(n), also contemplates that responsibility for administering the program remains at the state level:
In essence, state welfare agencies are responsible for the day-to-day administration of the food stamp program (under Federal Rules) and a substantial *386 portion of their administrative costs. In a number of states, these responsibilities are passed down to local welfare agencies because of the structure of the state’s welfare system. The state, however, remains ultimately responsible and is the unit with which the [USDA] deals.
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Robertson, 972 F.2d at 534 (quoting H.R.Rep. No. 95–464, 95th Cong., 1st Sess. 299 (1977), reprinted in 1977 U.S.C.C.A.N. 1971, 1704, 2235) (emphasis added).
This Court agrees with Robertson’s holding that a State that chooses to operate its food stamp program on a decentralized basis “cannot thereby diminish the obligation to which the state, as a state, has committed itself, namely, compliance with federal requirements governing the provision of the food stamp benefits that are funded by the federal government.” Robertson, 972 F.2d at 534; see also Woods v. United States, 724 F.2d 1444, 1447 (9th Cir.1984) (“While the state may choose to delegate some administrative responsibilities, the ‘ultimate responsibility for operation of the [food stamp] plan remain[s] with the state.’ ”) (quoting California v. Block, 663 F.2d 855, 858 (9th Cir.1981)). The same rationale applies to the State’s obligations under the Medicaid Act. See generally Hillburn v. Maher, 795 F.2d 252, 260 (2d Cir.1986) (“[T]he reason for the requirement that a state designate a ‘single State agency’ to administer its Medicaid program, was to avoid a lack of accountability for the appropriate operation of the program.”) (quoting 42 U.S.C. § 1396a(a)(5)).
The State defendants have a similar duty to oversee compliance with the State cash assistance programs to ensure against unconstitutional actions by the local agencies. See Moore v. Perales, 692 F.Supp. 137, 143 (E.D.N.Y.1988) ( “Under AFDC, it is the state agency that is ultimately responsible; it must account to the federal government.”); Beaudoin v. Toia, 45 N.Y.2d 343, 347–48, 408 N.Y.S.2d 417, 419, 380 N.E.2d 246 (1978) (“In the administration of public assistance funds, whether they come from Federal, State or local sources, ... the local commissions act on behalf of and as agents for the State.... Inasmuch as New York State has elected to participate in the Federal aid to families with dependent children program ..., the State is required to comply with the applicable Federal statute and regulations”).
Accordingly, this Court determines that implicit in the State’s obligations to administer the Food Stamp Act, Medicaid Act, and cash assistance programs is a duty to oversee the City defendants’ administration of the programs to ensure compliance with federal law. The City defendants’ failure to comply with the specific requirements of the Food Stamp and Medicaid Act, or their deprivation of plaintiffs’ due process rights in connection with the food stamps, Medicaid and cash assistance programs, gives rise to corresponding Section 1983 claims against the State defendants.

2. Notice of Alleged Deficiencies Through the Fair Hearing Process The State defendants contend that one primary way in which the State implements the Food Stamp and Medicaid Acts is by providing applicants and recipients with the right to administrative fair hearings to redress their grievances with local agency actions. The State defendants argue that the majority of plaintiffs have failed to avail themselves of the fair hearing process, and therefore cannot allege that the State defendants failed to supervise.
[15] The Court rejects this argument. As discussed above, plaintiffs are not required to exhaust their administrative remedies. Additionally, the State defendants have an independent duty to investigate the City defendants’ performance and act in an ongoing oversight capacity to ensure their compliance with federal mandates separate and apart from the fair hearing process. See supra Section E.1.
*387 3. Sufficiency of Pleadings Finally, the State defendants contend that the allegations against them are conclusory. The complaint alleges that the State defendants’ “failure to properly oversee and supervise the City defendants’ administration of the food stamps and Medicaid programs violates plaintiffs’ and plaintiff class members’ rights....” (Compl. ¶ 265; see also Compl. ¶¶ 5, 266, Request for Relief b. (viii), e.) As factual support for these allegations, plaintiffs enumerate the ways in which the City defendants fail to meet the statutory mandates of the Food Stamp and Medicaid Acts, and fail to provide due process in connection with the food stamps, Medicaid and cash assistance programs. See Compl. ¶¶ 68–105. As discussed above, see supra Section E.1., the State defendants are obligated to ensure that the City defendants implement these programs in accord with federal constitutional and statutory requirements.
[16] [17] The Supreme Court has held that there is no heightened pleading standard for civil rights actions alleging municipal liability under Section 1983. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993). The Leatherman Court rejected the argument that “a plaintiff must do more than plead a single instance of misconduct” and held that a complaint need only include “a short plain statement of the claim showing that the pleader is entitled to relief.” Leatherman, 507 U.S. at 167–68, 113 S.Ct. at 1162–63 (citing Fed.R.Civ.P. 8(a)(2)). Here, the complaint easily satisfies this standard.35
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35 Because this Court finds that the complaint makes sufficient allegations to survive a motion to dismiss, it need not reach plaintiffs’ request to amend the pleadings pursuant to Fed.R.Civ.P. 15(b) in accord with the evidence presented at the January 1999 evidentiary hearing. However, it is worth noting that at that hearing, plaintiffs presented evidence that would further support their claims against the State defendants for deficiencies in monitoring and correcting failures to comply with federal constitutional and statutory requirements by the City defendants.
Accordingly, the State defendants’ motion to dismiss for failure to allege sufficient facts against them is denied.
III. Plaintiffs’ Motion For Class Certification Plaintiffs move to certify a class consisting of “[a]ll New York City residents who have sought, are seeking, or will seek to apply for food stamps, Medicaid, and/or cash assistance at a Job Center.” (Compl. ¶ 61) Defendants oppose plaintiffs’ motion for class certification on the following grounds: (1) the proposed class is amorphous and not readily capable of being ascertained; (2) it is unnecessary; and (3) it would make plaintiffs’ request for certain relief unmanageable. For the reasons set forth below, plaintiffs’ motion for class certification is granted.
A. Standard for Class Certification Federal Rule of Civil Procedure 23 establishes two prerequisites for class actions. First, the party seeking class certification must prove that the proposed class meets the four requirements of Rule 23(a): (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. See Fed.R.Civ.P. 23(a); Caridad v. Metro–North Commuter R.R., 191 F.3d 283, 291 (2d Cir.1999); Marisol A. v. Giuliani, 126 F.3d 372, 375 (2d Cir.1997). Second, the party seeking class certification must show that the proposed class action falls within one of the types of class actions maintainable under Rule 23(b): (1) prosecution of separate actions by individual parties *388 would create a risk of either inconsistent adjudications or would be dispositive of the interest of those members not parties to the adjudication; (2) defendants have acted or refused to act on grounds generally applicable to the class; or (3) questions of law or fact common to members of the class predominate, and

a class action is superior to other available methods for adjudication. See Fed.R.Civ.P. 23(b); Caridad, 191 F.3d at 292; Marisol A., 126 F.3d at 376.
[18] [19] [20] When considering a motion for class certification, courts should consider the allegations in the complaint as true. See Shelter Realty Corp. v. Allied Maintenance Corp., 574 F.2d 656, 661 n. 15 (2d Cir.1978) (“it is proper to accept the complaint allegations as true in a class certification motion”). A court may not examine the merits of the case in a motion for class certification. See Caridad, 191 F.3d at 291 (citing Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 2152 (1974)). However, a court may consider material outside the pleadings in determining the appropriateness of class certification. See Kaczmarek v. International Business Machines Corp., 186 F.R.D. 307, 311 (S.D.N.Y.1999) (citing Sirota v. Solitron Devices, Inc., 673 F.2d 566, 571 (2d Cir.1982)).
B. Requirements of Federal Rule of Civil Procedure 23(a)
1. Numerosity [21] Turning to the first requirement under Rule 23(a), plaintiffs must show that the proposed class is so numerous that joinder of all members is impracticable. Impracticable does not mean impossible, but simply difficult or inconvenient. See Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.1993).
[22] Plaintiffs contend that “[u]pon information and belief, thousands of families and individuals apply for food stamps, Medicaid, and cash assistance from City defendants each month. Because City defendants deter, discourage, and prevent many of those who seek to file applications at Job Centers from filing those applications, the identify of many plaintiff class members is unknown to plaintiffs and, therefore, joinder is impracticable.” (Compl. ¶ 62) See also Smith Decl. ¶ 3 (centers processed approximately 168,000 public assistance applications in 1999). These figures satisfy the numerosity requirement. See, e.g., Marisol A., 126 F.3d at 376 (class of thousands “obviously numerous”); Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.1995) (numerosity presumed at forty); Morel v. Giuliani, 927 F.Supp. 622, 633 (S.D.N.Y.1995) (24,000 class members satisfies the numerosity requirement); Cutler v. Perales, 128 F.R.D. 39, 44 (S.D.N.Y.1989) (certifying class estimated “to be in the thousands”).
Other reasons make joinder impracticable. Plaintiffs allege that the identity of may plaintiff class members is unknown to them, thus making joinder extremely
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difficult, if not impossible. (Compl. ¶ 62) Class members’ lack of financial resources also makes joinder difficult. See Robidoux, 987 F.2d at 936 (financial resources of plaintiffs a factor in impracticability of joinder). Additionally, the fluid nature of the class further supports this Court’s finding that joinder is impracticable. See, e.g., Andre H. v. Ambach, 104 F.R.D. 606, 611 (S.D.N.Y.1985) (“The fact that the population ... is constantly revolving establishes sufficient numerosity to make joinder of the class members impracticable.”); Jane B. v. New York City Dep’t of Soc. Servs., 117 F.R.D. 64, 70 (S.D.N.Y.1987) (“the fluid composition of the populations ... [makes] joinder ... impracticable”); Arthur v. Starrett City Assocs., 98 F.R.D. 500, 505–06 (E.D.N.Y.1983) (“This fluctuating nature of the pool of prospective plaintiffs further demonstrates the impracticability of joinder.”).
[23] City defendants contend that this Court should deny plaintiffs’ motion for *389 class certification because the proposed class is amorphous and not readily capable of being ascertained. However, precise enumeration or identification of class members is not required. See Robidoux, 987 F.2d at 935. Courts have rejected this argument and certified similarly defined classes in other welfare benefit cases. See, e.g., Morel, 927 F.Supp. at 633–35 (rejecting argument that class of “[a]ll residents of New York City who have received, receive, or will receive AFDC, Food Stamps or Home Relief benefits who have requested, are requesting or will request a fair hearing in response to an action by the City agency to discontinue, suspend, reduce or restrict benefits and are entitled to aid continuing” is “not precisely drawn” and certifying the class); Brown v. Giuliani, 158 F.R.D. 251, 269 (E.D.N.Y.1994) (rejecting argument that certification of class of “all residents of New York City who are recipients of AFDC and who have or will request change of circumstance grants under the AFDC and EAF programs and whose requests are not disposed of promptly” should be denied because “the bounds of the class are not precisely drawn,” stating that “[a] class is clearly delineated if confined to eligible recipients of a government aid program,” and certifying the class).
2. Commonality and Typicality [24] The next two requirements of Rule 23(a) are commonality and typicality. “The commonality and typicality requirements tend to merge into one another, so that similar considerations animate analysis of Rules 23(a)(2) and (3).” Marisol A., 126 F.3d at 376. The crux of both requirements is to ensure that “maintenance of a class action is economical and [that] the named plaintiff’s claim and the class claims are so interrelated that the

interests of the class members will be fairly and adequately protected in their absence.” Marisol A., 126 F.3d at 376 (quoting General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 n. 13, 102 S.Ct. 2364, 2371 n. 13, 72 L.Ed.2d 740 (1982)). The commonality requirement is met if the plaintiffs’ complaints share a common question of law or fact, see Marisol A., 126 F.3d at 376; In re Agent Orange Prod. Liab. Litig., 818 F.2d 145, 166–67 (2d Cir.1987), while the “typicality requirement 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 ... irrespective of minor variations in the fact patterns underlying the individual claims.” Robidoux, 987 F.2d at 936–37.
[25] Here, plaintiffs have met the commonality and typicality requirements. Common questions of law and fact in this action include: (1) whether defendants unlawfully deter individuals from applying for food stamps, Medicaid, and cash assistance, and (2) whether defendants process applications for food stamps, Medicaid, and cash assistance in accord with applicable federal and state laws. The commonality and typicality requirements are met in this action because the named plaintiffs’ claims arise from the same course of conduct that gives rise to the claims of all the class members and are based on the same legal theories. See Drexel Burnham Lambert, 960 F.2d at 291; Escalera v. New York City Housing Authority, 425 F.2d 853, 867 (2d Cir.1970); Morel, 927 F.Supp. at 633.
[26] Defendants claim that because each class member faces his or her own set of individual factual circumstances, the commonality and typicality requirements are not met. However, variations in the fact patterns of individual plaintiffs do not vitiate the commonality and typicality claims. See Robidoux, 987 F.2d at 937; Jane B., 117 F.R.D. at 70. This argument has been raised and rejected in other cases involving welfare benefits. See Marisol A., 126 F.3d at 377 (commonality and typicality requirements met where “plaintiffs allege that their injuries derive from a unitary course of conduct by a single system”); Morel, 927 F.Supp. at 633–34 (rejecting argument that definition of class *390 would “require the Court to examine the individual circumstances of each claimant” and noting that “every proposed class requires a determination as to an individual’s membership, and that [ ]determination does not defeat the identification of the class itself”); Brown, 158 F.R.D. at 268 (rejecting argument that “there are no questions of fact common to the class as a whole and that plaintiffs’ claims are atypical ... [because of] the individual injuries suffered by each named plaintiff” and
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stating that “the overarching questions of fact are common to all class members, namely, whether defendants have failed to make timely determinations of [welfare] applications” and “the individual facts unique to each named plaintiff are merely methods of proving the ultimate fact”). Like the Marisol A. court, this Court believes “the myriad [of] constitutional, regulatory and statutory provisions invoked by the plaintiffs are properly understood as creating a single scheme for the delivery of ... welfare 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....” Marisol A., 126 F.3d at 376. This is sufficient to meet the commonality and typicality requirements.
3. Adequacy [27] The adequacy of representation requirement entails two factors: (1) class counsel must be qualified, experienced and generally able to conduct the litigation, and (2) the interests of the named plaintiffs cannot be antagonistic to those of the remainder of the class. See Marisol A., 126 F.3d at 378; In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 290 (2d Cir.1992). Both factors are met in this case.
This Court is convinced that plaintiffs’ counsel can adequately represent the class since they are experienced in class action litigation (Compl. ¶ 66), and have demonstrated throughout these proceedings that they will vigorously prosecute plaintiffs’ claims.
[28] The Court also believes that the named plaintiffs are able to fairly represent the class. “[O]nly a conflict that goes to the very subject matter of the litigation will defeat a party’s claim of representative status.” Kuck v. Berkey Photo, Inc., 81 F.R.D. 736, 740 (S.D.N.Y.1979) (quoting 7 Wright & Miller, Federal Practice & Procedure § 1768, at 639 (1972)); see also In re Joint Eastern and Southern Dist. Asbestos Litig., 78 F.3d 764, 778 (2d Cir.1996) (rejecting plaintiffs’ inadequacy of representation claim where there was no indication that their claims were antagonistic to the claims of any other class members). The interests of the named plaintiffs appear to be identical to those of the proposed class because all are subject to the same allegedly unconstitutional actions by defendants. Both the named plaintiffs and the class members seek declaratory and injunctive relief to assure that defendants’ actions comply with their constitutional and statutory rights. Thus, if the named plaintiffs prevail, all class members will benefit. Accordingly, plaintiffs have met each of the requirements of Rule 23(a).

C. Federal Rule of Civil Procedure 23(b) Requirements [29] Plaintiffs allege that their proposed class action is maintainable under Rule 23(b)(2)—that defendants have acted on grounds generally applicable to the class, making appropriate injunctive or declaratory relief with respect to the class as a whole. See Fed.R.Civ.P. 23(b)(2). This Court agrees. The City defendants have improperly deterred individuals from applying for food stamps, Medicaid, and cash assistance, and failed to process applications within the statutorily mandated time periods. See Reynolds I, 35 F.Supp.2d at 341–47. The State defendants have failed to oversee the City defendants’ compliance with welfare laws. See supra. Such actions by defendants make plaintiffs’ request *391 for injunctive and declaratory relief with respect to the class as a whole appropriate. See Marisol A., 126 F.3d at 378; Comer v. Cisneros, 37 F.3d 775, 796 (2d Cir.1994) (Rule 23(b)(2) satisfied where “the plaintiffs seek injunctive relief and they predicate the lawsuit on the defendants’ acts and omissions with respect to” the class); Advisory Committee Note to Subdivision (b)(2) (“Illustrative are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.”) Accordingly, this Court finds that plaintiffs have met the requirements of Rule 23 for class certification.
D. Necessity The City defendants argue that class certification is not necessary because the proposed class would, as a practical matter, benefit from any relief ordered in this action. They further contend that this Court can fashion any relief granted in a manner that will have class-wide effect, thus making certification unnecessary and inappropriate.
[30] The Second Circuit has held that a district court need not certify a class where class certification is largely a formality. See Berger v. Heckler, 771 F.2d 1556, 1566 (2d Cir.1985); Galvan v. Levine, 490 F.2d 1255, 1261 (2d Cir.1973); Vulcan Society v. Civil Service Comm’n, 490 F.2d 387, 399 (2d Cir.1973). In affirming the district court’s refusal to certify a class, the Galvan Court reasoned:
[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
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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 (first emphasis added) (second emphasis in original). City defendants claim that in this action, class certification would likewise be a formality.
District courts have held that the Galvan rule only applies when the relief sought by plaintiffs is prohibitory. See Cutler, 128 F.R.D. at 46; Jane B., 117 F.R.D. at 72; Milburn v. Coughlin, No. 79 Civ. 5077 (S.D.N.Y. Nov. 26, 1980); Folsom v. Blum, 87 F.R.D. 443, 445 (S.D.N.Y.1980); Monaco v. Stone, 187 F.R.D. 50, 63 (E.D.N.Y.1999); Ashe v. Board of Elections, 124 F.R.D. 45,50 (E.D.N.Y.1989). In Cutler, the court found the Galvan rule inapplicable where plaintiffs “seek relief that would require defendants to take affirmative steps to remedy existing unconstitutional conditions ... and to implement standards that comport with the mandates of federal and state laws and regulations.” Cutler, 128 F.R.D. at 46 (quoting Jane B., 117 F.R.D. at 72); accord Monaco, 187 F.R.D. at 63; Ashe, 124 F.R.D. at 51. Much like the plaintiffs in those cases, plaintiffs here seek affirmative injunctive relief to compel the City defendants to process applications for cash assistance, Medicaid, and food stamps in a manner consistent with plaintiffs’ rights under the federal and state statutory and regulatory scheme and compel State defendants to oversee the City defendants’ administration of those welfare systems. See Compl. Request for Relief (d), (e), and (f). Because the relief requested by plaintiffs is not purely prohibitory, the Galvan rule is not a barrier to this Court’s granting of class certification.
[31] Even if, arguendo, the Galvan rule were applicable to this action, class certification is not a mere formality because it will insure against the danger of this action becoming moot. This case involves a fluid class where the claims of the named plaintiffs may become moot prior to completion of this litigation. The danger of mootness is magnified by the fact that *392 defendants have the ability to moot the claims of the named plaintiffs, thereby evading judicial review of their conduct. Thus, this Court, like other courts under these circumstances, believes that class certification is necessary. See Greklek v. Toia, 565 F.2d 1259, 1261 (2d Cir.1977) (affirming district court’s grant of class certification in action requesting declaratory and injunctive relief “since only class certification could avert the substantial possibility of the litigation becoming moot prior to the decision”); Alston v. Coughlin, 109 F.R.D. 609, 612 (S.D.N.Y.1986) ( “[t]he plaintiff’s interest in averting the possibility of the action becoming moot, with the concomitant interest in judicial economy,

makes class certification in this case more than an empty formality”); Jane B ., 117 F.R.D. at 72 (“[a]n additional reason for granting the motion for certification lies in avoiding problems of mootness”); Ashe, 124 F.R.D. at 51 (“[a] further ground for finding class certification to be more than a ‘formality’ here is to avoid the danger of the individual plaintiffs’ claims becoming moot before a final adjudication”); Koster v. Perales, 108 F.R.D. 46, 54 (E.D.N.Y.1985) (class certification is necessary when “absent certification, there is a substantial danger of mootness”). Accordingly, plaintiffs’ motion for class certification is granted.
E. Appropriateness as to Requested Relief [32] Finally, the City defendants argue that class certification should be denied because plaintiffs are seeking “retroactive damages” in addition to declaratory and injunctive relief, thus making certification “unmanageable.” (City Defs.’ Mem. at 8) This Court disagrees with the City defendants’ characterization of the relief requested by plaintiffs. The complaint seeks, inter alia, an order requiring the City defendants to identify and reprocess the applications of those class members whose applications were wrongly denied. (Compl., Request for Relief f(i)). This request is for injunctive relief, not for retroactive money damages. Even assuming the Court granted this relief, the City defendants’ concern that countless mini-trials would be necessary to implement it is pure speculation.
For the reasons set forth above, plaintiffs’ motion to certify as a class all New York City residents who have sought, are seeking, or will seek to apply for food stamps, Medicaid, and/or cash assistance at a Job Center is granted.
Conclusion
For the reasons set forth above, the City defendants’ motion to vacate the preliminary injunction is denied; the State defendants’ motion to dismiss the complaint is denied; and the plaintiffs’ motion for class certification is granted.
The Court will conduct a status conference with all counsel on August 4, 2000 at 3:45 p.m. in Courtroom 618.
30

Reynolds v. Giuliani, 118 F.Supp.2d 352 (2000) ©
31

 
 Reynolds v. Giuliani

2005 WL 351729 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Lakisha REYNOLDS, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, and Elston Richards, on their own behalf and on behalf of all others similarly situated,
Plaintiffs, v.
Rudolph GIULIANI, as Mayor of the City of New York, Jason Turner, as Commissioner of the New
York City Human Resources Administration, Brian J. Wing, as Commissioner of the New York
State Office of Temporary and Disability Assistance, and Barbara Debuono, as
Commissioner of the New York State Department of Health, Defendants.
No. 98 Civ. 8877(WHP). | Feb. 14, 2005.
Opinion
ORDER
PAULEY, J.
*1 On December 30, 2004, this Court issued its Memorandum and Opinion granting in part and denying in part plaintiffs’ requests for declaratory relief and a permanent injunction requiring defendants to process applications for food stamps, Medicaid and cash assistance in accord with federal and state law. See Reynolds v. Giuliani, No. 98 Civ. 8877(WHP), 2004 WL 3017014 (S . D.N.Y. Dec. 30, 2004).
On January 13, 2005, plaintiffs moved for reconsideration of this Court’s holdings that: (1) 18 N.Y.C.R.R. § 387.8(a)(2)(i)(a) does not confer a privately enforceable right of action; and (2) plaintiffs’ claim under New York Social Services Law § 133 is barred by the doctrine of

sovereign immunity.
Motions for reconsideration are governed by Local Civil Rule 6.3, which provides in pertinent part: “There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes that court has overlooked.” Thus, the movant must demonstrate that the court overlooked controlling decisions or factual matters which, had they been considered “might reasonably have altered the result reached by the court.” Consol. Gold Fields v. Anglo Am. Corp., 713 F.Supp. 1457, 1476 (S.D.N.Y.1989); accord In re Initial Public Offering Antitrust Litig., Nos. 01 Civ.2014(WHP), 01 Civ. 11420(WHP), 2004 WL 789770, at *1 (S.D.N.Y. Apr. 13, 2004).
Plaintiffs argue that this Court overlooked several Second Circuit decisions enforcing the obligation of local public assistance agencies to provide assistance to the needy even where such agencies also serve as agents of the state for some purposes. See Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir.2004); Koster v. Perales, 903 F.2d 131 (2d Cir.1990); Holley v. Lavine, 605 F.2d 623 (2d Cir.1979). This Court notes that the issue concerning Eleventh Amendment immunity was not fully briefed or argued by the parties prior to this Court’s December 30, 2004 Memorandum and Opinion.
After considering the parties’ motion papers, plaintiffs’ motion for reconsideration is granted. Upon reconsideration, this Court concludes that plaintiffs’ pendent state claims under 18 N.Y.C.R.R. § 387.8(a)(2)(i)(a) and New York Social Services Law § 133 are privately enforceable in this action. This Court’s reasoning is set forth in an Amended Memorandum and Opinion dated February 14, 2005.
To avoid piecemeal determinations, this Court amends its original findings of fact and conclusions of law to reflect its decision on plaintiffs’ motion for reconsideration. The December 30, 2004 Memorandum and Opinion is withdrawn and is superceded by the Amended Memorandum and Opinion dated February 14, 2005.

1

 
 Reynolds v. Giuliani

2005 WL 342106 United States District Court,
S.D. New York.
Lakisha REYNOLDS, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, and Elston Richards, on their own behalf and on behalf of all others similarly situated,
Plaintiffs, v.
Rudolph GIULIANI, as Mayor of the City of New York, Jason Turner, as Commissioner of the New
York City Human Resources Administration, Brian J. Wing, as Commissioner of the New York
State Office of Temporary and Disability Assistance, and Barbara Debuono, as
Commissioner of the New York State Department of Health, Defendants.
No. 98 Civ.8877(WHP). | Feb. 14, 2005.
Attorneys and Law Firms
Henry Freedman, Welfare Law Center, Inc., New York, NY, for Plaintiffs.
Yisroel Schulman, New York Legal Assistance Group, New York, NY, for Plaintiffs.
Scott Rosenberg, The Legal Aid Society, Civil Division, New York, NY, for Plaintiffs.
Kenneth Rosenfeld, Northern Manhattan Improvement Corp., New York, NY, for Plaintiffs.
Jonathan L. Pines, Office of the Corporation Counsel of the City of New York, New York, NY, for City Defendants.
Charles A. Miller, Covington & Burling, Washington, D.C., for City Defendants.
James M. Hershler, William H. Bristow, III, Assistant Attorneys General of the State of New York, New York, NY, for State Defendants.
Opinion
AMENDED MEMORANDUM AND OPINION
PAULEY, J.

*1 This class action was brought on behalf of qualified welfare beneficiaries who claim to have been deprived of federally sponsored cash assistance, food stamp and Medicaid benefits in violation of federal and state law. Plaintiffs brought this action against Rudolph Giuliani as Mayor of the City of New York and Jason Turner as Commissioner of the New York City Human Resources Administration (“HRA”) (collectively, the “City defendants”), as well as Brian J. Wing as Commissioner of the New York State Office of Temporary and Disability Assistance (“OTDA”) and Barbara DeBuono as Commissioner of the New York State Department of Health (“DoH”) (collectively, the “State defendants”). The Complaint (“Compl.”) alleges violations of the Food Stamp Act, 7 U.S.C. § 2020 et seq., the Medicaid Act, 42 U.S.C. § 1396 et seq., and New York law. The Complaint further alleges that those violations support individual claims pursuant to 42 U.S.C. § 1983. Plaintiffs seek declaratory relief and a permanent injunction ordering defendants to process applications for food stamps, Medicaid and cash assistance in accord with federal and state law. For the following reasons, plaintiffs’ requested relief is granted.
As required by Rule 52, this Court sets forth its findings of fact and conclusions of law.
FINDINGS OF FACT
I. Background The factual background and regulatory framework undergirding plaintiffs’ claims are set forth in three prior memoranda and orders of this Court. See Reynolds v. Giuliani, 35 F.Supp.2d 331 (S.D.N.Y.1999) (“Reynolds I” ); Reynolds v. Giuliani, 43 F.Supp.2d 492 (S.D.N.Y.1999) (“Reynolds II” ); Reynolds v. Giuliani, 118 F.Supp.2d 352 (S.D.N.Y.2000) (“Reynolds III” ).
Following enactment of the Personal Responsibility and Work Opportunity Reconciliation Act (“PRWORA”),1 the City defendants began converting their Income Support Centers-the primary vehicle for distributing public assistance-into Job Centers to comply with PRWORA. The City defendants operate twenty-nine Centers that are either Job Centers or Income Support Centers scheduled for conversion to Job Centers. (Declaration of Patricia Smith, dated Feb. 2, 2001 (“Smith Decl.”) ¶¶ 2-3.) On average, those Centers process between 12,000 and 15,000 applications for public assistance each month. (Smith Decl. ¶ ¶ 2-3.) Many of those applications are
1

Reynolds v. Giuliani

combined with applications for food stamps and Medicaid. (Smith Decl. ¶¶ 2-3.)

1

PRWORA replaced the Aid to Families With

Dependent Children (“AFDC”) program with the

Temporary Assistance for Needy Families (“TANF”)

program.

On December 16, 1998, plaintiffs filed this action alleging that certain policies and practices of HRA and OTDA prevent eligible individuals from applying for and timely receiving food stamps, Medicaid and cash assistance. Reynolds I, 35 F.Supp.2d at 337. Plaintiffs claim that defendants are violating federal and state law by: (1) failing to provide or accept initial applications and improperly deterring potential applicants; (2) failing to make correct eligibility determinations and failing to provide immediate needs grants or expedited food stamp service to eligible applicants on a timely basis; (3) failing to make eligibility determinations regarding applicants’ food stamp and Medicaid applications separate from the eligibility determinations regarding their cash assistance applications; and (4) failing to provide applicants with timely and adequate written notices of determinations of their eligibility for these benefits. (Compl.¶¶ 3, 255-57, 260, 262-64.)
*2 On January 25, 1999, this Court granted a preliminary injunction requiring the City defendants to accept and process applications for food stamps, Medicaid and cash assistance. Reynolds I, 35 F.Supp.2d at 347-48. That injunction also barred the City defendants from opening any new Job Centers or converting existing Income Support Centers to Job Centers pending a hearing on the adequacy of a corrective action plan. Reynolds I, 35 F.Supp.2d at 347-48.
On February 5, 1999, the Food and Nutrition Service at the U.S. Department of Agriculture (“USDA”) concluded that the converted Job Centers were impeding access to public assistance. (See Declaration of Steven Ptak, dated Feb. 2, 2001 (“Ptak Decl.”) Ex. 3: Attach. at 6-14.) The USDA report requested a corrective action plan and recommended that OTDA monitor local district operations to ensure compliance with all applicable food stamp regulations. (Ptak Decl. Ex. 3: Attach. at 6-24.)
In response to the USDA report, OTDA staff reviewed operations at twelve Job Centers. OTDA concluded that “New York City had implemented corrected procedures to address the deficiencies identified in the USDA Program Access Review.” (Ptak Decl. Ex. 13.) OTDA further found that the City was fulfilling its obligations under federal and state law. (See Ptak Decl. Ex. 13:

Attach. at 2 (draft report, Ex. 16).)
On May 24, 1999, this Court approved the City defendants’ corrective action plan (“CAP”) and modified the preliminary injunction to permit the City defendants to open three additional Job Centers. See Reynolds II, 43 F.Supp.2d at 497-98. The CAP specified that individuals seeking benefits would be informed of their right to apply for them during their initial contact with any Job or Income Center. See Reynolds II, 43 F.Supp.2d at 495-96. The CAP also provided for training, audits and a “spot check” program of unannounced inspections. (Declaration of Jacquelyn Flaum, dated Feb. 1, 2001 (“Flaum Decl.”) ¶ 3.)
In July and August 1999, OTDA reviewed nine Centers and again concluded that the Job Centers were fulfilling their responsibilities to public assistance applicants. (Ptak Decl. Ex. 21 at 1, Ex. 24.) Consequently, on December 10, 1999, the City defendants applied for a further modification of the preliminary injunction and offered results from an August 1999 audit of applications submitted from May through July 1999 (the “August 1999 Audit”). After a three-day hearing in December 1999 and January 2000, this Court found that the City defendants had failed to demonstrate sufficient improvement to warrant modification of the preliminary injunction. See Reynolds III, 118 F.Supp.2d at 352. Additionally, this Court denied the State defendants’ motion to dismiss the complaint and their application to modify the preliminary injunction. This Court also certified a class consisting of “all New York City residents who have sought, are seeking, or will seek to apply for food stamps, Medicaid, and/or cash assistance at a Job Center.” Reynolds III, 118 F.Supp.2d at 392.
*3 On February 8, 2001, plaintiffs consented to vacatur of that portion of this Court’s January 25, 1999 Order staying the opening of new Job Centers and the conversion of existing Income Support Centers to Job Centers. That concession was based on the results of an audit of applications filed in September 2000 at Job Centers and Income Support Centers to measure their performance (the “September 2000 Audit”). The September 2000 Audit focused on the twenty-nine Centers where benefits applications were being processed and reviewed a statistically significant sample of applications filed in New York City.
In April 2001, this Court conducted a bench trial. The September 2000 Audit was the centerpiece of the trial. The City defendants presented testimony from Patricia M. Smith, Executive Deputy Director of the Family Independence Administration, Dr. Jessica Pollner, an
2

Reynolds v. Giuliani
expert in statistical analysis (Trial Transcript (“Trial Tr.”), at 69), and William Waldman, an expert in the operation and administration of public assistance programs and in national human services policy as it affects state public assistance programs. (Trial Tr. at 177.) Plaintiffs’ only witness was Richard Faust, an expert in sampling and statistics.
II. City Defendants
A. The Application Process While the application process for public assistance varies depending on the Center, a client’s first interaction is with a receptionist. (City Defendants’ Proposed Findings of Fact (“City Defs. Findings”) ¶ 3.) If a prospective applicant indicates a desire to apply for public assistance benefits, the receptionist is required to provide an Applicant Job Profile, i.e., an application, to be completed by the applicant. (City Defs. Findings ¶ 3.) Once the application is completed, the receptionist checks to see if the applicant has an active or pending case at another Income Support or Job Center. (City Defs. Findings ¶ 3.) After an application is completed, a Center employee registers it in the State’s computerized Welfare Management System (“WMS”) database. A registration number is assigned memorializing the application date. (City Defs. Findings ¶ 3; Smith Decl. ¶¶ 7-8.)
Once the application is registered, a Center employee interviews the applicant to determine eligibility. (City Defs. Findings ¶ 4.) At Job Centers, that interview must cover subjects including emergency assistance, employment counseling and general eligibility guidelines for the different public assistance programs. (City Defs. Findings ¶ 4.) In addition, eligibility interviewers are required to address various social issues that may arise. For example, applicants who are victims of domestic violence are referred to an HRA domestic violence liaison. (City Defs. Findings ¶ 4.) Applicants for ongoing assistance who have an immediate need may also be eligible for “pre-investigative” grants during the time their application is pending. (City Defs. Findings ¶ 4; Smith Decl. ¶ 10.)
*4 During the eligibility interview, a Center worker reviews the application to determine whether the applicant needs immediate benefits, and completes a history sheet explaining why the applicant came to the Center and identifying any needs. (City Defs. Findings ¶ 5; Smith Decl. ¶ 11.) When determining whether applicants are eligible for pre-investigative benefits, family size, income, resources, citizenship or immigration status and identification are considered. (City Defs.

Findings ¶ 5; Smith Decl. ¶ 11.) Applicable codes are entered into the WMS and forms including, inter alia, an expedited service worksheet for food stamps; a Form 145HH, notifying the applicant of HRA’s decision to grant or deny an immediate needs grant and/or expedited food stamps; a Form DSS-3575, authorizing the payment of any immediate benefit; a Form DSS-3574, authorizing the issuance of expedited food stamps; and the form DSS-3517, which provides demographic data about the applicant are completed. (City Defs. Findings ¶ 5; Smith Decl. ¶ 11.) In addition, appointment referrals are made and applicants are finger-imaged. (City Defs. Findings ¶ 5; Smith Decl. ¶ 11.) After review by a Center supervisor, the paperwork is entered into the WMS and applicants receive written notice of any decision on their benefits applications.
A “Notice of Decision on Food Stamps and/or Cash Assistance to Meet an Immediate Need” is issued advising applicants whether they will receive an immediate needs grant or expedited food stamps, and the reason for the decision. (City Defs. Findings ¶ 30.) Applicants withdrawing their applications receive a “Notification of Application Withdrawal” informing them that they may qualify for food stamps or Medicaid even though they did not complete their cash assistance applications. (City Defs. Findings ¶ 30.) Finally, an “Action Taken on Your Application” form is provided to advise applicants of their eligibility for assistance. (City Defs. Findings ¶ 30.) If the application is denied, that form explains the reasons for the denial and advises applicants of their right to a fair hearing if they wish to challenge the denial. (City Defs. Findings ¶ 30.)
B. The September 2000 Audit The September 2000 Audit was conducted pursuant to a protocol established by the parties from a statistically significant sample of applications filed in September 2000 at 29 Income Support and Job Centers in New York. (See Fourth Report of Plaintiffs’ Expert Richard Faust (“Fourth Faust Rep.”) ¶¶ 6-13; City defendants’ Expert Jessica Pollner’s Report (“Pollner Rep.”) at 5.) The audit assessed whether: (a) expedited food stamp and immediate needs cash grants were timely provided to those eligible for such grants; (b) applications for food stamps, Medicaid and cash assistance were withdrawn based on inaccurate or misleading information; (c) separate food stamps and Medicaid determinations or referrals were made as required when cash assistance applications were denied or withdrawn; and (d) notice concerning expedited food stamps, immediate needs cash grants, Medicaid and cash assistance was timely and adequate. (Fourth Faust Rep. ¶ 14; Pollner Rep. at 5.)
3

Reynolds v. Giuliani

*5 A sample of 597 applications was selected from a population of 13,972 names within the City defendants’ Eligibility Verification Review (“EVR”) database. The sample included applications filed in September 2000 and applications filed prior to that time that were withdrawn or rejected on the same day they were filed. (Fourth Faust Rep. ¶¶ 6, 9, 11-12; Declaration of Jessica Pollner (“Pollner Decl.”) at 1-3.) The EVR data system captures information from the WMS regarding applicants scheduled for an appointment with an EVR office. (Fourth Faust Rep. ¶ 7.) The parties then selected 559 applications from the EVR list for review. (Fourth Faust Rep. ¶ 11 .)

The EVR database did not include applications withdrawn on the day they were filed. To address that omission, the parties sampled applications filed in September 2000 that were not entered into the EVR system by collecting case files for all September 2000 applications identified as withdrawn or rejected on the first day (the “withdrawn sample”). (Fourth Faust Rep. ¶¶ 8, 12; Pollner Rep. at 2-3.) A total of 37 such cases were selected for audit, 36 of which were used in the audit results. (Fourth Faust Rep. ¶ 12; Pollner Rep. at 2-3.)2

2

The EVR data system captures information from the

WMS regarding applicants scheduled for an

appointment with an EVR office and contains the

greatest number of applications filed in any given

month. (Fourth Faust Rep. ¶ 7.)

However, the data supplied by the City defendants did not represent all withdrawn cases recorded on the application logs. (Fourth Faust Rep. ¶ 13.) Thus, plaintiffs created a supplemental list of withdrawn applications from the logs maintained by the Job Centers and drew a supplemental sample from that list. That supplemental list contained an additional 825 names. At the direction of this Court, HRA attempted to locate the files for those applications but succeeded in retrieving only two (the “supplemental withdrawn sample”). (Fourth Faust Rep. ¶ 13.)
The September 2000 Audit minimized disputes over data from applicant files. (Fourth Faust Rep. ¶ 27; Plaintiffs’ Proposed Findings of Fact (“Pls.Findings”) ¶ 34.) The parties disagreed over only 8 of the 559 EVR sample, and 8 of the withdrawn and supplemental withdrawn sample cases. (Pls. Findings ¶ 34; Fourth Faust Rep. ¶ 27.)
However, after the September 2000 Audit was completed, the City defendants embarked unilaterally on a second review of cases for which the plaintiffs and the City defendants had both concluded that either (1) expedited

food stamps or immediate needs cash grants were erroneously denied, or (2) an application was withdrawn based on inaccurate or misleading information. Based on this second review, the City defendants changed their determinations in 34 cases. (Declaration of Michael Bermudez, dated Mar. 9, 2001 (“Bermudez Decl.”) ¶¶ 5, 16-20, 22; Deposition of Michael Bermudez, dated Mar. 19, 2001 (“Bermudez Dep.”), at 69-70, 82-83.)

The City defendants engaged in opportunistic rummaging within the data set that led to a significant change in their statistics. Specifically, the City defendants determined that the relevant pool was the total number of applications rather than the total number of eligible applications. That alteration of the denominator had a profound effect on statistical comparisons of the City defendants’ success rates. This Court agrees with plaintiffs that the proper base from which HRA’s success or failure rates are calculated is the number of eligible applicants, not the number of overall applicants. Compliance with the food stamp, Medicaid and cash assistance laws should be measured according to how many eligible applicants are incorrectly denied benefits.3 Moreover, because the City defendants’ second review was dehors the agreed-upon protocol for the September 2000 Audit and not subject to challenge by plaintiffs, it does not bear the same indicia of reliability as the earlier results.

3

See, e.g., Reynolds v. Giuliani, 35 F.Supp.2d 331, 334

(S.D.N.Y.1999) (“The State agency must provide

eligible applicants that complete the initial application

process with food stamps as soon as possible.”) (citing

7 U.S.C. § 2020(e)(3) and 7 C .F.R. § 273.2(g))

(emphasis added); see also Catanzano v. Wing, 103

F.3d 223, 229 (2d Cir.1996) (“A state’s Medicaid plan

must make ‘medical assistance’ available to qualified

recipients.” ) (citing 42 U.S.C. § 1396d(a)) (emphasis

added).

*6 Faust also evaluated the EVR sample of 559 cases for possible bias. Because the size of the population sampled was unknown, the total withdrawn population could not be identified. (Fourth Faust Rep. ¶¶ 40-42.) Nevertheless, Faust concluded that “based on the sampling protocol, the 36 withdrawn applications audited from the initial withdrawn list should be representative of the ... applications initially retrieved.... [T]here is no reason to expect any better performance among the non-retrieved applicants than among the retrieved applications.” (Fourth Faust Rep. ¶ 43.) Thus, although the City defendants lack accurate information concerning the number of withdrawn applications, this Court concurs with Faust that there is no reason to expect any better performance among the non-retrieved applications than among the retrieved ones.
4

Reynolds v. Giuliani
In contrast, Pollner combined the EVR sample with the withdrawn sample. (Supplemental Report of Jessica Pollner (“Supp. Pollner Rep .”) at 1-2.) While Faust considered that statistical method inappropriate, he nevertheless re-ran his results combining the 36 applications in the withdrawn sample with the EVR sample, thereby testing Pollner’s procedure. Faust concluded that combining the samples did not significantly affect the overall audit procedures. (Fourth Faust Rep. ¶¶ 45-46.)
Therefore, this Court finds that the September 2000 Audit was conducted in accord with generally accepted survey principles and generally recognized statistical standards. Specifically, this Court concludes that: (1) the EVR sample is representative of the EVR population from which it was selected; (2) the inclusion of the withdrawn sample in the results of the September 2000 Audit does not materially alter the outcome; (3) the data gathered was accurately reported; and (4) the data was analyzed in accord with accepted statistical principles. See Manual for Complex Litigation (4th) § 11.493. The findings of the September 2000 Audit are discussed below.

1. Expedited Food Stamps The Food Stamp Act requires that states provide food stamps to certain needy households on an expedited basis. See 7 U.S.C. § 2020(e)(9). All applicants for food stamps must be screened to determine whether they qualify for expedited issuance of food stamps. See 7 U.S.C. § 2020(e)(9); 7 C.F.R. § 273.2(i)(2). New York law requires that eligible applicants be provided with expedited food stamps within five days. See 18 N.Y.C.R.R. § 387.8(a)(2)(i)(a); see also 7 U.S.C. § 2020(e)(9) (seven-day requirement). It bears noting that the statutory regimes focus on eligible applicants. See 7 U.S.C. § 2020(e)(3); 7 C.F.R. § 273.2(g); 42 U.S.C. § 1396d(a).

Faust’s and Pollner’s calculations show nearly identical citywide performance in providing expedited food stamp service within the five-day period set forth by New York State law: 69 percent versus 69.31 percent, respectively. (Pls. Ex. 49: Fourth Faust Rep., Table C-2; Pollner Supp. Rep. at 14, Table 13.) Both parties agree that the Job Centers provide expedited food stamp services within five days to no more than 72 percent of the applicants who receive expedited food stamps and that the citywide average is approximately 69 percent. (Pls. Ex. 49: Fourth Faust Rep., Table C-2; Pollner Supp. Rep. at 14, Table 13.)4

4

Using a compliance rate that compares the number of

applicants who received food stamps within the federally required seven days with the total number of applicants who were eligible for expedited food stamps, Faust calculated that 303 applicants were approved for expedited food stamps citywide and that 72 other applicants were eligible for expedited food stamps but were incorrectly denied. (Supp. Pollner Rep. Queries C-8 & C-15 at Attach. 16.) An additional 23 grants were authorized but not issued. (Supp. Pollner Rep. Attach. 16, Query C-5.) Thus, from the pool of 398 applicants eligible for expedited food stamps, 259 eligible applicants, or 65.07 percent, received expedited food stamps within seven days.
*7 Faust and Pollner were in substantial agreement concerning the percentage of applicants properly denied expedited food stamps because of ineligibility. Faust calculated that 33 percent of applicants were actually ineligible to receive expedited food stamps. (Fourth Faust Rep., Table C-3, at Pls. Ex. 49.) Pollner’s original report showed that applicants were properly denied expedited food stamps because they were ineligible 42.67 percent of the time. (Pollner Rep. at 15 (Table 10).) Even taking Pollner’s revised data, the percentage of ineligibles only increased to 45.09 percent. (Supp. Pollner Rep. at 6; Fourth Faust Rep. Table C-3, at Pls. Ex. 49.) Accordingly, the range of eligible applicants who were denied expedited food stamps is between 57.33 percent (Pollner) and 67 percent (Faust).
2. Immediate Needs Grants Where applicants for Medicaid, food stamps or cash assistance are in immediate need, temporary assistance must be granted pending completion of an eligibility investigation. N.Y. Soc. Serv. Law § 133; see Gonzales v. Blum, 486 N.Y.S.2d 630, 632 (Sup.Ct.1985) (“There is no doubt that this section establishes the right of public assistance applicants to pre-investigative relief should it appear that they are in immediate need.”). Applicants in need are entitled to immediate needs grants even when ongoing eligibility has not yet been established. See 18 N.Y.C.R.R. § 351.8(c)(4).
Faust and Pollner were in virtual agreement concerning the City defendants’ rate of compliance with the same-day requirement once an immediate needs grant was authorized: 69 percent versus 69.31 percent, respectively. (Pls. Findings ¶ 58.) Both experts agree that the Job Centers provided immediate needs grants on the same day as requested to no more than 79.33 percent of the eligible applicants. (Pls. Findings ¶ 58; Supp. Pollner Rep., Table 4 at 9.)
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Reynolds v. Giuliani

The experts’ conclusions regarding eligible applicants who never received immediate needs cash grants are again substantially similar. Pollner concluded that 54.06 percent of citywide applicants were correctly denied immediate needs grants (Supp. Pollner Rep. Table 5 at 9), compared to Faust’s 51 percent. (Pls. Ex. 49: Fourth Faust Rep., Table B-3.) This minor discrepancy is attributable to the City defendants’ data rummaging.5

5

The City defendants maintain that examining the

number of grants issued the day following the

application is relevant for determining their level of

compliance. But even then, Pollner calculates that only

72.82 percent of eligible applicants received immediate

needs grants on the same day or the next day citywide.

(Pls. Findings ¶ 63, Table 12.)

3. Separate Determinations for Foods Stamps and Medicaid The September 2000 Audit also addressed the issue of whether HRA workers made separate determinations for food stamps and Medicaid when cash assistance applications were denied.
Federal law provides that “no household shall have its food stamp benefits denied solely on the basis that its application to participate in another program has been denied or its benefits under another program have been terminated without a separate determination by the State agency that the household failed to satisfy a food stamp eligibility requirement.” 7 C.F.R. § 273.2(b)(3). If the cash assistance application is denied or withdrawn, the applicant is not required to submit a new application for food stamps. 7 C.F.R. § 273.2(b)(3).
*8 The Medicaid program contains a similar requirement. Individuals or households wishing to apply for Medicaid benefits must be given the opportunity to do so. See 42 U.S.C. § 1396a(a)(8); 42 C.F.R. § 435.906. Medicaid applications must be processed within 45 days, except in circumstances where the applicant claims to be eligible for Medicaid because of a disability, in which case the application must be processed within 90 days. See 42 C.F.R. § 435.911(a)(1)-(2). A state agency cannot deny an application for Medicaid benefits solely because the cash assistance application was denied or withdrawn. See 42 C.F.R. § 435.909. Nor may the State require that the individual or family in such circumstances submit a new Medicaid application. See 42 C.F.R. § 435.909.
Both experts concluded that the City defendants made separate food stamp determinations when denying cash

assistance applications only sporadically. (Fourth Faust Rep. ¶ 64 (6 percent); Supp. Pollner Rep., Table 19, at 20 (14.20 percent).) Separate determinations for Medicaid benefits after cash assistance was denied were made less than 11 percent of the time. (Fourth Faust Rep. ¶ 66 (8 percent); Pollner Rep. Table 19, at 20 (10.34 percent).)

4. Application Withdrawals Federal law requires that if a Medicaid application is withdrawn, the administering agency must send a notice to the applicant confirming the withdrawal. See 42 C.F.R. § 435.913. The state agency, here HRA, or the state-delegated agency, may not deny Medicaid benefits solely because the cash assistance application has been withdrawn, nor may the cash assistance applicant be required to submit a new Medicaid application. See 42 C.F.R. § 435.909.

Federal law also requires that case files document withdrawal of a food stamp application and the advice to a household of its right to reapply for food stamp benefits. See 7 C.F.R. § 273.2(c)(6). Where a cash assistance application is withdrawn, the applicant cannot be required to submit a new application for food stamps. See 7 C.F.R. § 273.2(b)(3).

The experts spar over the number of applications withdrawn based on erroneous information provided by Center employees to applicants. Faust concludes that 49 percent of cash assistance applications, 45 percent of food stamp applications and 56 percent of Medicaid applications were withdrawn based on misleading information from City workers. (Fourth Faust Rep. ¶ 63.) Pollner found a significantly lower incidence of improperly induced withdrawals. However, her conclusion was based on all applications (Supp. Pollner Rep., Tables 16-18, at 17-19), rather than only those that were withdrawn.

Pollner’s comparison uses the wrong yardstick. (Fifth Faust Rep. ¶ 45.) The accurate measure is all withdrawn applications because they are the relevant population for inquiry. (See Fifth Faust Rep. ¶ 45.) This Court accepts Faust’s data because Pollner’s tables have been adjusted to reflect the already-rejected second review of individual cases conducted by the City defendants.6

6

Plaintiffs present persuasive documentation

demonstrating how, for each case in dispute, they

reached the conclusion that the application was

withdrawn based on inaccurate and misleading

information. (See Declaration of Randall Jeffrey, dated

Feb. 9, 2001 (“Jeffrey Decl.”) at 7, 9, 10, 11, 17.)

Notably, the City defendants dramatically reduced the

6

Reynolds v. Giuliani
number of applications that they characterized as withdrawn based on inaccurate or misleading information between the time of their expert’s initial report and her supplemental report. (Compare Pollner Rep. at 19-20, with Supp. Pollner Rep. at 18-19, Table 18.)
5. Provision of Notices *9 Both federal and New York law require that notice be provided for any decision regarding an application. All notices must include the action taken by the agency and the laws and regulations on which that action was based. Additional requirements include the reason for any denial or the amount of the benefit granted, the effective date and the certification period. See 7 C.F.R. § 273.10(g)(1) (food stamps); 42 C.F.R. §§ 435.911, 435.912 (Medicaid); 18 N.Y.C.R.R. §§ 351.8(b), 358.2.2(a).
Faust calculated performance measures regarding notices for five types of grants: expedited food stamps service, immediate needs grants, ongoing food stamps, Medicaid and cash assistance. Faust also referred to the date on notices to determine whether they were timely provided. (Fourth Faust Rep. ¶ 69.) The City defendants limited their inquiry to two notices: the W-145HH (“Notice of Decision on Food Stamps and/or Cash Assistance to Meet an Immediate Need”) and the M-3 (“Action taken on your Application: Public Assistance, Food Stamps, and Medical Assistance Coverage”). (See Supp. Pollner Rep., Table 15B at 16; Supp. Pollner Rep., Query E-2, at Attach. 16.) Pollner did not report on whether either of those notices were completed accurately or timely. This Court finds the statistical data presented by Faust to be more reliable. Faust’s data shows, inter alia, the following significant failings:
a. For food stamp applicants who did not receive expedited food stamps (“EFS”), the Form W-145HH was in the case file 70 percent of the time but included a reason for non-issuance only 48 percent of the time. (Fourth Faust Rep. ¶ 72.)
b. For applicants who received EFS, the Form W-145HH was in the case file and included the amount of the grant 81 percent of the time; the date of issuance 22 percent of the time; and the time covered by the grant 15 percent of the time. (Fourth Faust Rep. ¶ 73.)
c. For applicants who indicated an immediate need but did not receive a grant, the Form W-145HH was in the case file 78 percent of the time. (Fourth Faust

Rep. ¶ 74.)
d. The Form M-3 was in the case file for those denied ongoing cash assistance in 87 percent of the cases, and was in the case file with the correct address in 71 percent of the cases. (Fourth Faust Rep. ¶ 78.)
e. When the Form M-3 was in the case file and the cash assistance application was denied, the form for each assistance denial and reasons for the denial were completed 49 percent of the time. (Fourth Faust Rep. ¶ 79.)
f. When the Form M-3 was in the case file and the food stamp application was denied, the form for food stamp denials and the reasons for the denial were completed 48 percent of the time. (Fourth Faust Rep. ¶ 81.)
C. Other Performance Measures Apart from the September 2000 Audit, plaintiffs offered other evidence of the City defendants’ non-compliance. These measures of performance include Program Evaluation Review Team audits (“PERT audits”), State Program Access Reviews (“PA Reviews”) and Management Evaluation Reviews (“ME Reviews”) of the Centers, and ongoing performance reviews by the USDA for compliance with food stamp program procedures.
*10 The PERT audits revealed that Job Centers and Income Support Centers inappropriately denied expedited food stamps in 23.2 and 27.6 percent of the reviewed cases, respectively. (Pls. Findings ¶ 84.) In terms of the rate with which the Centers failed to issue expedited food stamps on a timely basis, the results were 24.7 and 35.8 percent, respectively. (Pls. Findings ¶ 85.) For issuance of immediate needs grants, the PERT audits found that the Centers improperly denied cash grants in 33.3 and 52 percent of the cases, respectively. (Pls. Findings ¶ 86.)
The PERT audits indicated that Job Centers failed to make separate food stamps determinations in 97 percent of the cases, while Income Support Centers failed in 78.5 percent of the cases. (Pls. Findings ¶ 87.) Job and Income Support Centers did not make separate Medicaid determinations in 86.9 and 68.4 percent of the cases reviewed, respectively. (Pls. Findings ¶ 87.)
The PERT audits yielded results roughly similar to the September 2000 Audit regarding the City defendants’ provision of adequate notices. For example, in approximately 12 percent of the cases reviewed citywide,
7

Reynolds v. Giuliani
W-145HH forms were missing from case files, indicating a failure to notify applicants of the eligibility determination for immediate needs grants or expedited food stamps. (Pls. Findings ¶ 87.)
In November 1999, the USDA conducted performance reviews and noted problems such as inadequate case file determinations, improper denials of expedited food stamps, incorrect completion of expedited screening sheets (Form W-140K), failure to make separate determinations of eligibility for food stamps and untimely or missing notices. (Pls. Ex. 144 at 4-6, 8.) The Health Care Finance Administration (“HCFA”), the federal agency in charge of the Medicaid program, also reviewed applicant files in 1999 and found instances where applications were denied without a referral for an independent Medicaid determination. (Pls. Ex. 88 at 9-10, 22.)
Plaintiffs assert that these studies further establish the City defendants’ failure to comply with federal and state law. However, plaintiffs’ reliance on prior reviews captures the world’s largest welfare system in a still portrait and overlooks the City defendants’ efforts toward compliance. Instead, these reviews set a benchmark against which the City defendants’ remedial measures should be evaluated. Since they were conducted, the City defendants have undertaken various policy initiatives to improve the Centers’ performance in providing eligible applicants with Medicaid, food stamps and cash assistance, which are relevant to determining compliance with state and federal law. For example, the policy directive adopted as part of the Corrective Action Plan makes clear that all individuals have the right to apply for benefits on their first day of contact with a Center. (See Policy Directive 99-06R(2); Policy Bulletin 99-13; Center Operations Memorandum CD 99-3.) The City defendants have sought to enforce this policy through various means including training, audits and the agency’s “spot check” program, which was implemented in 1999 in order to determine whether Centers were adhering to HRA’s mandate to permit applicants to apply and be seen by a worker on the same day.
*11 In terms of initiatives regarding immediate needs grants, HRA issued policy directives and conducted training to underscore that applicants’ emergency needs must be met before turning to issues of employment and self-sufficiency. (See Policy Directives 00-62, 99-06R(2), 99-06(RR), 99-07R(3), 99-08R(4), 99-11R(4); Policy Bulletin 99-13; Smith Decl. ¶ 20.) Since the preliminary injunction issued, HRA increased the number of immediate needs grants distributed each month from less than 5,000 to over 10,000, while the number of

applications has remained fairly constant at around 15,000 per month. (See Smith Decl. ¶ 21, Ex. 1(A).)
Additionally, HRA has issued policy directives and conducted training to emphasize that applicants should be screened for expedited food stamp service, and that they may be eligible for expedited food stamps even if it appears that they may not meet the necessary requirements for program participation. (See Policy Directives 99-06R(2), 99-08R(4), 99-60RR; Policy Bulletin 99-13; Smith Decl. ¶ 27.) Further, applicants are no longer required to complete a separate form for expedited service. (See Smith Decl. ¶ 11.) Instead, the screening questions are now on the application. (See Smith Decl. ¶ 11.) Eligible applicants are notified and an electronic benefit transfer (“EBT”) card is furnished to them. (See Smith Decl. ¶¶ 25-26.) HRA also began a citywide program in 2000 that now permits Center workers to open a separate non-public assistance food stamp case without the transfer of files to an NPA Center. (Trial Tr. at 137.)
Separate determinations for Medicaid cases are made by HRA’s Medicaid Assistance program. Thus, if cash assistance is denied for reasons that would not apply automatically to Medicaid, a separate Medicaid determination is required. (See Trial Tr. at 138.) Prior to the August 1999 audit, referrals to the Medicaid Assistance Program were not tracked. (Trial Tr. at 138.) In 2000, HRA initiated an automated “reminder” system that combs the WMS, culls cases where public assistance was rejected or closed, identifies those requiring a separate Medicaid determination and then accesses the Medicaid eligibility database to determine whether action was taken. (See Smith Decl. ¶ 29; Declaration of Seth Diamond (“Diamond Decl.”) ¶ 2.)
HRA also expanded several initiatives intended to oversee Center operations as a whole. A number of these initiatives are conducted through the Office of Quality Assurance (“OQA”), which consists of the Office of Eligibility Monitoring, the Office of Audit and Quality Control and the Office of Corrective Action Innovation. To avoid federal sanctions for payment errors, the Office of Eligibility Monitoring performs monthly audits of all active TANF and food stamp cases. (See Declaration of Rochelle Abdullah, dated Feb. 1, 2001 (“Abdullah Decl.”) ¶ 7, Exs. 2, 3.) Congruent with these reviews, the Audit and Quality Control Office evaluates all federal and state audits to ensure that error rates reported for New York City are based on complete and accurate information. (See Abdullah Decl. ¶ 6.) In 1998, the Office of Corrective Action Innovation established the PERT audit procedure to improve oversight of the Centers. Although the PERT
8

Reynolds v. Giuliani
audit protocol envisions three visits per year by state reviewers to each Center, the City defendants have fallen short of that regimen. (See Abdullah Decl. ¶¶ 11-12, Exs. 5, 6.)
*12 In May 2000, HRA started compiling a monthly “Job Stat” report to evaluate each Center’s performance in specific areas, including employment, administration and self-sufficiency progress. (Smith Decl. ¶ 37; Declaration of Andrew Bush, dated Mar. 9, 2001 (“Bush Decl.”) ¶¶ 4-5, 7.) The Job Stat report enables performance comparisons among Centers as well as performance tracking of each Center over time. (Bush Decl. ¶ 7.) Additionally, HRA launched an initiative called “CenterStat” to evaluate the data compiled in the JobStat reports and develop Center-specific solutions. (Bush Decl. ¶¶ 21-24.)
III. State Defendants
A. Office of Temporary and Disability Assistance (OTDA) OTDA supervises all social services work performed by local government units and regulates the financial assistance granted by the State. (Ptak Decl. ¶ 6.) While OTDA oversees rules promulgated by local governments, those regulations become effective automatically within thirty days if OTDA does not invalidate them. (Ptak Decl. ¶ 8.) Although OTDA prescribes minimum qualifications for local social services department staff, it lacks authority to hire or terminate local HRA staff. (Ptak Decl. ¶ 11.) Rather, OTDA supervises the local districts’ compliance with food stamp regulations. (Ptak Decl. ¶ 3; Pls. Ex. 33 at 18.) Under a delegation of authority from OTDA, New York’s fifty-eight local social services districts, including New York City, administer the food stamp program within their districts. (Ptak Decl. ¶ 3.)
As part of its supervisory function, OTDA monitors food stamp program access in the Job and Income Support Centers in four ways: (1) PA Reviews; (2) ME Reviews; (3) operational review; and (4) corrective action plan (“CAP”) follow-up review. (Deposition of Rosella Bryson, dated Feb. 15, 2001 (“Bryson Dep.”) at 53-54.) The PA reviews help ensure compliance with food stamp procedures. (State Defendants Post-Trial Memorandum of Law (“State Defs. Mem.”) at 10 .) The ME reviews, conducted on a cyclical basis, measure compliance with USDA objectives. (Ptak Decl. ¶¶ 2, 7, 50.) During 2000 and 2001, OTDA conducted PA and ME reviews at all Job Centers and completed food stamp reviews at five Income Support Centers. (Ptak Decl. ¶¶ 11, 52.) However, the PA and ME reviews were not conducted at regular

intervals, and OTDA has no policy regarding how much time may elapse between those reviews. (State Defs. Ex. NN at 59.)
A January 1999 USDA Report noted a “lack of effective state agency oversight at local district offices.” (Pls. Ex. 33 at 17.) Further, the Report commented that “[s]ubstantial non-compliance with the [Food Stamp Act] and regulations has gone undetected and unaddressed at the local level.” (Pls. Ex. 33 at 17.) In 2000 and 2001, OTDA reported the results of its various reviews to the City defendants and required CAPs on a Center-by-Center basis. (Ptak Decl. ¶¶ 52-53.)
*13 In March 2001, OTDA notified HRA about its reviews of food stamp program access in New York City and summarized the findings of the PA reviews, ME reviews and CAP follow-up reviews. (Ptak Supp. ¶ 18; State Defs. Ex. NNN.) That notification required HRA to submit quarterly reports to OTDA until all outstanding issues were resolved. (Ptak Supp. ¶ 18; State Defs. Ex. NNN.)
OTDA also issued directives requiring adherence to specific program requirements, including the separate determination of eligibility for food stamps. (Ptak Decl. ¶¶ 40, 43; Ptak Supp. ¶ 17.) In January 2000, HRA issued a policy directive providing that when a public assistance application is withdrawn or denied, but the applicant wants to proceed with a food stamp eligibility evaluation, HRA staff must register and accept the case in all Centers. (Ptak Decl. ¶ 40.) Nevertheless, in October 2000, OTDA advised HRA that the ME reviews had demonstrated that this policy had not been implemented in compliance with the initial schedule. (Ptak Decl. ¶ 40.) In response, OTDA directed HRA to investigate and address its failure to make separate determinations. (Ptak Decl. ¶ 40.) OTDA also required that HRA submit a plan for citywide implementation of OTDA’s policy directive regarding separate food stamp determinations. (Ptak Decl. ¶ 40.) HRA submitted a draft policy directive, which, at the time of trial, was still under review by OTDA. (Ptak Supp. ¶ 16; State Defs. Ex. KKK.) Further, in March 2001, OTDA directed HRA to furnish monthly written confirmations that OTDA’s policy concerning separate food stamp determinations are being implemented. (Ptak Supp. ¶ 17.)
OTDA also has monitored and requested improvements to HRA’s EVR process. In December 2000, in accord with USDA mandates, OTDA directed HRA to cease its policy of denying food stamp applications when applicants fail to keep a scheduled EVR appointment. (Ptak Decl. ¶ 45; State Defs. Ex. JJ.) In January 2001, HRA agreed in writing that it would comply with OTDA’s directive.
9

Reynolds v. Giuliani
(Ptak Decl. ¶ 45; Ptak Supp. ¶ 13.)
In tandem with the layers of supervision detailed above, OTDA provides a system of fair hearings for public assistance applicants to review decisions by local social service officials regarding such assistance. (State defendants’ Findings of Fact (“State Defs. Findings”) ¶ 148.) OTDA employs approximately 125 administrative law judges and supervising administrative law judges to conduct these hearings. (Declaration of Russell J. Hanks, dated Feb. 2, 2001 (“Hanks Decl.”) ¶ 3.) Approximately 90 of those judges are assigned to administer fair hearings in the New York City district. (Hanks Decl. ¶ 4.)
B. New York State Department of Health (DoH) As part of its supervisory function, DoH evaluates changes in federal law such as welfare reform that impact the Medicaid program and disseminates information regarding those changes to the local districts for implementation. (Declaration of Betty Rice (“Rice Decl.”) ¶ 19.) DoH provides legal interpretations of such changes to determine whether state law and regulations should be amended to conform to revised federal requirements. (Rice Decl. ¶ 20.) DoH also consults with New York State agencies that may be affected by new legislation. (Rice Decl. ¶ 21.) DoH notifies local districts, such as New York City, of federal and state mandates, provides training in the implementation of policies, and develops various reference tools that summarize procedures for receipt of Medicaid. (See State Defs. Findings ¶ 82.) Once DoH has completed its issuance of written guidance to the local districts on new federal and state mandates, it provides ongoing technical assistance and training for each district. (Rice Decl. ¶ 27.)
*14 DoH trains HRA staff regarding Medicaid issues. (Rice Decl. ¶ 28; Declaration of Cornelia McElligot, dated Feb. 2, 2001 (“McElligot Decl.”) ¶ 8.) Further, DoH coordinates Medicaid Technical Advisory Group (“MTAG”) meetings with New York City. (McElligot Decl. ¶ 9; Rice Decl. ¶ 31.) DoH also conducts “Targeted Case Reviews” or Medicaid Eligibility Quality Control (“MEQC”) reviews, under a federal waiver. The MEQC reviews are conducted in accordance with HCFA requirements. (Deposition of Betty Rice, dated Feb. 16, 2001 (“Rice Dep.”) at 21.)
In early 1998, DoH learned that the City defendants intended to convert certain Income Support Centers to Job Centers. (Rice Decl. ¶ 6.) The State defendants acknowledge that this litigation was DoH’s first notice of complaints regarding inappropriate denials, withdrawals and deterrence of Medicaid applications at certain

Centers. (State Defs. Findings ¶ 101.) DoH reacted by issuing instructions to local districts to bring them into compliance. (Rice Decl. ¶ 5.) DoH further collaborated with the City defendants to review and approve corrective changes in the City’s policy directives regarding the application process. (McElligot Decl. ¶ 7 .)
In early 1999, DoH provided HCFA with information concerning DoH’s administration of the Medicaid program, including the monitoring of social services districts. (Rice Decl. ¶ 15.) In addition, DoH participated in developing a statewide work plan to review program access, case reviews, and for unannounced visits to local districts. (Rice Dep. at 97; McElligot Decl. ¶ 14.)
In August 2000, in response to federal efforts to improve low-income families’ ability to enroll in Medicaid, DoH formulated a work plan for Medicaid program access. That work plan included reviews of the State’s Medicaid eligibility policy as well as the Medicaid eligibility status of TANF cases closed since the implementation of PRWORA. (State Defs. Exs. RRR, VVV, ZZZ; Rice Decl. ¶ 17; Rice Dep. at 95-101.)
After learning of plaintiffs’ allegations, DoH revised its policy directives and required HRA employees to monitor referrals for separate Medicaid determinations. (Rice Decl. ¶ 48.) HRA distributed a brochure titled “You Can Still Apply for Medicaid,” explaining that applicants may still be eligible for Medicaid benefits even if they are denied cash assistance. (Rice Decl. ¶ 49 .) DoH also clarified an applicant’s entitlement to a separate Medicaid determination in the event cash assistance is denied. (Rice Decl. ¶ 51.)
CONCLUSIONS OF LAW
I. The City Defendants
A. Legal Standard and Private Rights of Action Under the Food Stamp and Medicaid Acts A party seeking a permanent injunction must demonstrate irreparable harm and must actually succeed on the merits. See Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 n. 12 (1987); Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904, 907 (2d Cir.1990); Civic Assoc. of the Deaf v. Giuliani, 915 F.Supp. 622, 631 (S.D.N.Y.1996). It is necessary to show that the irreparable injury is likely, not merely possible. See JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d. Cir.1990). As discussed at length in Reynolds I, plaintiffs have established the
10

Reynolds v. Giuliani

irreparable harm threatened by an erroneous denial of benefits. See 35 F.Supp.2d at 338-40.

*15 Plaintiffs assert private rights of action based on defendants’ violations of the Food Stamp and Medicaid Acts, and further contend that these violations support individual claims under § 1983. See Reynolds I, 35 F.Supp.2d at 336-37. Section 1983 imposes liability on those who, acting under color of state law, deprive a person “of any rights, privileges, or immunities secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983.7 To seek redress through § 1983, a plaintiff “must assert the violation of a federal right, not merely the violation of a federal law.” Blessing v. Freestone, 520 U.S. 329, 340 (1997) (emphasis in original). The City defendants contend that neither the Food Stamp Act nor the Medicaid Act creates a right for individuals to enforce system wide compliance.

7

Although municipalities may not be held liable under §

1983 on a theory of respondeat superior, they may be

liable under § 1983 if “execution of a government’s

policy ... whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent

official policy” causes the deprivation of federal rights.

Pembaur v. City of Cincinnati, 475 U.S. 469, 475

(1986); Monell v. Dep’t of Social Servs., 436 U.S. 658,

691-92 (1978). When a municipality’s failure to train

its employees in some relevant respect amounts to

“deliberate indifference,” that failure is tantamount to a

policy or custom and is thus actionable under § 1983.

City of Canton, Ohio v. Harris, 489 U.S. 378, 389

(1989).

In determining whether a statutory provision creates a federal right, courts must consider three factors: (1) “Congress must have intended that the provision in question benefit the plaintiff”; (2) “the plaintiff must demonstrate that the right assertedly protected by the statute is not so ‘vague and amorphous’ that its enforcement would strain judicial competence”; and (3) “the statute must unambiguously impose a binding obligation on the States.” Blessing, 520 U.S. at 341. Additionally, as clarified by the Supreme Court in Gonzaga University v. Doe, a federal right must be “unambiguously conferred” to support a cause of action under § 1983. 536 U.S. 273, 283 (2002) ( “[I]t is rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced under the authority of [Section 1983].” (emphasis in original)).
The provision of the Medicaid Act that plaintiffs claim was violated requires that “medical assistance ... shall be furnished with reasonable promptness to all eligible individuals.” 42 U.S.C. § 1396a(a)(8). As explained

below, this provision gives rise to a § 1983 claim under Blessing.
First, the section is framed unambiguously in terms of eligible individuals’ rights. See 42 U.S.C. § 1396a(a)(8) (Medicaid benefits “shall be furnished” to eligible applicants ); see also Cannon v. Univ. of Chicago, 441 U.S. 677, 692 n. 13 (1979) (for statute to create private rights, its text must be “phrased in terms of the persons benefited”); Touche Ross & Co. v. Redington, 442 U.S. 560, 576 (1979) (rights-creating statutes typically phrased with unmistakable emphasis on benefited class). Eligible applicants are the intended beneficiaries under § 1396(a)(8) since they are to receive Medicaid benefits with reasonable promptness. See Sabree v. Richman, 367 F.3d 180, 189 (3d Cir.2004) (holding that § 1396a(a)(8) creates a privately enforceable right because, inter alia, plaintiffs were intended beneficiaries); see also Bryson v. Shumway, 308 F.3d 79, 88 (1st Cir.2002) (holding that § 1396a(a)(8) creates privately enforceable rights under § 1983).
*16 Second, the right conferred is neither vague nor amorphous. See Sabree, 367 F.3d at 189 (“[T]he rights sought to be enforced by [plaintiffs under § 1396a(a)(8) ] are specific and enumerated, not ‘vague and amorphous” ’); Bryson, 308 F.3d at 89 (holding that § 1396a(a)(8) satisfies second Blessing factor).
Finally, this provision unequivocally binds the states. The Medicaid Act “mandates that state plans ‘must’ provide that medical assistance ‘shall’ be provided with reasonable promptness. These are not mere guidelines but, rather, requirements which states must meet under the Medicaid system.” Bryson, 308 F.3d at 89; Mendez v. Brown, No. Civ.A. 03-30160-KPN, 2004 WL 626550, at *5 (D.Mass. Mar. 26, 2004) (§ 1396a(a)(8) confers a private right of action under § 1983 whether “analyzed strictly under Blessing or through the filter of Gonzaga” ); see also Sabree, 367 F .3d at 189 (“[T]he obligation imposed on the states [under § 1396a(a)(8) ] is unambiguous and binding.”).
Similarly, the provisions of the Food Stamp Act at issue here confer enforceable rights under § 1983. As this Court discussed at some length in Reynolds I, Congress intended those provisions to benefit eligible applicants such as plaintiffs, the provisions are unambiguous and they impose unequivocal obligations on the states. See 35 F.Supp.2d at 340-41 (discussing 7 U.S.C. §§ 2020(e)(2)(B), 2020(e)(3), 2020(e)(9)).
The legislative history of the Food Stamp Act also evinces Congress’ intent to permit private rights of action.
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Reynolds v. Giuliani
Subsequent to the 1977 amendments, the House Agricultural Committee Report stated that the “administrative remedies against the state contained in section 11(f) and elsewhere should not be construed as abrogating in any way private causes of action against states for failure to comply with federal ... requirements.” H.R.Rep. No. 464, 95th Cong., 1st Sess. 398. As explained by the Seventh Circuit, “[t]he explicit statement that administrative remedies do not abrogate a private party’s right to sue and the specific acknowledgement of cases based on that right clearly indicate congressional intent to allow a private remedy based on the Food Stamp Act.” Haskins v. Stanton, 794 F.2d 1273, 1275 (7th Cir.1986); see also Gonzales v. Pingree, 821 F.2d 1526, 1528 (11th Cir.1987) (noting that, under Atkins v. Parker, 472 U.S. 115 (1985), food stamps are a matter of “statutory entitlement”).

B. Compliance Requirements Having determined that plaintiffs may pursue their Food Stamp and Medicaid Act claims under § 1983,8 it is necessary to decide what level of compliance is required under these statutes. The City defendants contend, based on the funding provisions of the Food Stamp and Medicaid Acts, that only substantial compliance is required under those laws. Those funding provisions, sections 2020(g) and 1396c, respectively, are phrased as directives to the state agencies tasked with administering the Food Stamp and Medicaid programs. See 7 U.S.C. § 2020(g) (food stamp funding may be terminated when a state fails to comply with federal standards without “good cause”); 42 U.S.C. § 1396c (authorizing the cessation of payments to a state if, inter alia, “there is a failure to comply substantially with any such provision [of the Medicaid Act]”); 42 U.S.C. § 1396b(u)(1)(A)-(B) (the federal agency may waive such reductions if a state is unable to reach the permissible error rate “despite a good faith effort”).

8

Because this Court has determined that plaintiffs have

enforceable rights under § 1983, it is unnecessary to

decide whether the Food Stamp and Medicaid Acts

themselves create individually enforceable rights.

However, as Gonzaga observed, “implied right of

action cases should guide the determination of whether

a statute confers rights enforceable under § 1983,”

since “in either case we must first determine whether

Congress intended to create a federal right.” 536 U.S. at

283.

*17 The City defendants’ argument is unavailing because it is the text of the Food Stamp and Medicaid Act provisions at issue-and not the funding provisions-to

which this Court must look in determining the level of compliance required. As noted by the Ninth Circuit, “[t]he funding standard is not intended to be the measure of what the [Food Stamp and Medicaid Acts] require; it is intended to measure how great a failure to meet those requirements should cause funds to be cut off.” Withrow v. Concannon, 942 F.2d 1385, 1387 (9th Cir.1991) (“[W]e are not convinced ... that the standard for termination of federal funding ... is the appropriate one to define the rights of applicants and recipients of program benefits.”); see also Bleecker Charles Co. v. 350 Bleecker St. Apartment Corp., 327 F.3d 197, 203 (2d Cir.2003) (to determine meaning of statute, court should look to the language of the statute itself and need look no further if those words are unambiguous).
The plain language of § 1396a(a)(8) states in mandatory, not precatory, terms that Medicaid benefits “shall be furnished” to persons eligible to receive them. 42 U.S.C. § 1396a(a)(8). The relevant provisions of the Food Stamp Act are phrased in similar mandatory terms. See, e.g., 7 U.S.C. § 2020(e)(2)(B) (“[A] State agency ... shall provide timely, accurate, and fair service to applicants for, and participants in, the food stamp program ... [and] shall develop an application containing the information necessary to comply with this chapter.”). The language of these provisions is unambiguous and requires that state agencies “shall” or “must” provide the specified benefits to eligible applicants. The plain language thus requires that state agencies comply strictly with their obligations to provide food stamps and Medicaid benefits to eligible applicants. See Withrow, 942 F.2d at 1387-88 (holding that strict, not substantial, compliance is required under Food Stamp and Medicaid Acts); Haskins, 794 F.2d at 1277 (same).
This interpretation does not encroach on a municipal government’s conduct of its internal affairs because “[t]he Act itself imposes the burden.” Haskins 794 F.2d at 1277; see also Withrow, 942 F.2d at 1388 (“The fact that absolutely perfect compliance is unattainable does not of itself preclude an injunction requiring the state to comply with the regulations.”). Nor does this holding disturb the principle that district courts have discretion when deciding whether injunctive relief is warranted. “[A]n injunction is not required whenever an agency that is otherwise in full compliance fails in one or a very few sporadic instances.” Withrow, 942 F.2d at 1388. “There is however, doubtless a point at which any failure of total compliance is truly de minimus, where the state has come to comply ‘as strictly as is humanly possible,’ and it is within the discretion of the district court to deny injunctive relief.” Withrow, 942 F.2d at 1388. Accordingly, the City defendants are obliged to comply
12

Reynolds v. Giuliani
strictly with the Food Stamp and Medicaid Acts.
C. City Defendants’ Compliance *18 Whether the City defendants are complying with the Food Stamp and Medicaid Acts is a fact-specific question. Remedial measures undertaken to redress deficiencies in performance are relevant to whether a “policy or custom” exists for purposes of § 1983 liability. See City of Canton, 489 U.S. at 389. Rather than gauging compliance by reference to a specific numeric standard, it is appropriate to consider whether the City defendants have invested the resources and human capital to ensure provision of welfare benefits. (See Trial Tr. at 226.)
1. Expedited Food Stamps Plaintiffs seek to hold the City defendants liable for failing to comply with New York’s five-day requirement for expedited food stamps under 18 N.Y.C.R.R. § 387.8(a)(2)(i)(a), which they assert as a pendent state law claim. (Compl.¶ 7.)
To determine whether a statute creates a privately enforceable right of action under New York law, a court must consider: “(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme.” Henry v. Isaac, 632 N.Y.S.2d 169, 170 (App. Div.2d Dep’t 1995) (quoting Sheehy v. Big Flats Cmty. Day, 73 N.Y.2d 629, 633 (1989)).
First, just as plaintiffs are intended beneficiaries of the Food Stamp Act, they are intended beneficiaries of 18 N.Y.C.R.R. § 387.8(a)(2)(i)(a). New York Social Services Law § 62 provides that “each public welfare district shall be responsible for the assistance and care of any person who resides or is found in its territory and who is in need of public assistance and care which he is unable to provide for himself.” N.Y. Soc. Serv. Law § 62, subd. 1; see Jones v. Berman, 37 N.Y.2d 42, 54-55 (1975). The City thus bears responsibility for providing public assistance to qualified welfare beneficiaries such as plaintiffs. 18 N.Y.C.R.R. § 387.8(a)(2)(i)(a) implements that directive with respect to expedited food stamps. Buttressing this conclusion, New York courts have inferred private rights of action for similar statutory provisions. See, e.g., Doe v. Dinkins, 600 N.Y.S.2d 939, 943 (App. Div. 1st Dep’t 1993) (upholding injunction for City’s failure to comply with 18 N.Y.C.R.R. §§ 491.3(g)(1)(i) and 491.10(o)(9)(iv)); Lamboy v. Gross,

513 N.Y.S.2d 393, 396-98 (App. Div. 1st Dep’t 1987) (upholding preliminary injunction for violation of administrative directive 83 ADM-47).

Second, recognizing a private right of action under 18 N.Y.C.R.R. § 387.8(a)(2)(i)(a) promotes the legislative purpose, enshrined in Article XVII § 1 of the State Constitution, mandating aid to the needy. See Wilkens v. Perales, 128 Misc.2d 265, 268, 487 N.Y.S.2d 961 (Sup.Ct.1985) (“Aid to the needy is not dependent upon governmental compassion but is a fundamental right.”). Private claims under 18 N.Y.C.R.R. § 387.8(a)(2)(i)(a) will aid in effectuating that mandate.

*19 Third, recognizing a private right to enforce 18 N.Y.C.R.R. § 387 .8(a)(2)(i)(a) is consistent with the legislative scheme because it helps to ensure that public officers charged with implementing a state constitutional mandate will perform that duty. See Wilkens, 128 Misc.2d at 268.9

9

The exercise of supplemental jurisdiction over

plaintiffs’ state law claim comports with the values of

judicial economy, fairness and comity set forth in

United Mine Workers of America v. Gibbs, 383 U.S.

715, 726 (1966). Whether the City defendants are in

compliance with New York’s five-day limit for

expedited food stamps hinges on the same

findings-namely, the September 2000 Audit-on which

plaintiffs’ federal claims rest. See Leonard v. Dutchess

County Dep’t of Health, 105 F.Supp.2d 258, 261

(S.D.N.Y.2000) (exercising supplemental jurisdiction

where plaintiff’s state and federal claims rested on

identical facts). Further, plaintiffs’ state law claim is

neither novel nor complex. The straightforward issue is

whether the City defendants must provide expedited

food stamps within five days or within the seven-day

federal limit. Finally, New York courts have inferred

private rights of action from similar regulations.

Defendants rely on Concourse Rehabilitation & Nursing Center v. DeBuono for the proposition that plaintiffs cannot enforce a state law against a state entity in federal court. See 179 F.3d 38, 43-44 (2d Cir.1999) (“[T]he failure of a State authority to comply with State regulations cannot alone give rise to a § 1983 cause of action.”). While that proposition is correct, Concourse is inapposite because the plaintiff in that case attempted to assert a state law claim through § 1983 against a state defendant. See Concourse, 179 F.3d at 43-44. Here, by contrast, plaintiffs assert their 18 N.Y.C.R.R. § 387.8(a)(2)(i)(a) cause of action as a pendent state law claim. It is not engrafted on § 1983. Moreover, while New York City exercises “a slice of state power” as a social services district, Holley v. Lavine, 605 F.2d 638, 644 (2d Cir.1979), it nevertheless has the primary responsibility to
13

Reynolds v. Giuliani
provide food stamps for the needy who live within its borders. See Biggs v. Block, 629 F.Supp. 1574, 1580 (E.D.N.Y 1986) (“New York administers its Food Stamp program through local agencies. Each county (plus the City of New York) has been designated a social services district which is responsible for public assistance programs within its jurisdiction.”). Therefore, the City does not enjoy sovereign immunity as a state defendant.
The parties’ experts both concluded that the City defendants were in compliance with the five-day period for expedited food stamps under 18 N.Y.C.R.R. § 387.8(a)(2)(i)(a) only 69 percent of the time. (Pls. Ex. 49: Fourth Faust Rep., Table C-2; Pollner Supp. Rep. at 14, Table 13.) Since approximately one-third of eligible applicants do not receive expedited food stamps within the required five-day limit, this Court cannot conclude that the City defendants are meeting their obligations under 18 N.Y.C.R.R. § 387.8(a)(2)(i)(a).10 10 Additionally, the percentage of eligible applicants
receiving expedited food stamps within the federally mandated seven-day limit is not materially different. (See Supp. Pollner Rep. Attach. 16, Query C-5; Pls. Findings ¶ 53.) The City defendants’ PERT audits do not undermine that finding. While the City defendants launched an initiative to make expedited food stamps available on the day of application, it was not fully implemented at the time of trial. Accordingly, this Court also concludes that the City defendants have not complied with the federal time limits for expedited food stamps.
Moreover, approximately 65 percent of eligible applicants were denied expedited food stamps. (See Fourth Faust Rep., Table C-3, at Pls. Ex. 49; Pollner Rep. at 15 (Table 10).) Error rates of these magnitudes are evidence of a breakdown in the delivery of essential services to New York’s neediest population. See Caswell v. Califano, 583 F.2d 9, 12-13 (1st Cir.1978) (injunction warranted where government failed to meet obligations for nearly half of eligible claimants); Peppers v. McKenna, 81 F.R.D. 361, 366-67, 370 (N.D.Ohio 1977) (time limit satisfied for only 47.4 percent of welfare benefits appeals).
2. Immediate Needs Grants Plaintiffs also invoke this Court’s supplemental jurisdiction to assert a claim for violation of New York Social Services Law § 133. This Court finds that its exercise of supplemental jurisdiction is appropriate here. See supra note 9. That statute provides public assistance applicants with a right to pre-investigative relief if they are in immediate need. See Gonzales, 486 N.Y.S.2d at

632 (stating that § 133 establishes a right of public assistance recipients to pre-investigative relief). Local social services districts do not enjoy sovereign immunity against plaintiffs’ Social Services Law claim because they have a duty to administer public assistance under New York law. Thus, the City can be held liable for failing to comply with the strictures of Social Services Law § 133. See Koster v. Perales, 903 F.2d 131, 137 (2d Cir.1990) (noting that the “County Commissioner has an independent statutory duty, distinct from his obligation as an agent of the State, to ‘administer ... public assistance and care” ’); Holley, 605 F.2d at 644 (stating that the Supreme Court “has ‘consistently refused to construe the [Eleventh] Amendment to afford protection to political subdivisions such as counties and municipalities, even though such entities exercise a “slice of state power” ” ’ (quoting Lake County Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 400 (1979))).
*20 While Beaudoin v. Toia, 45 N.Y.2d 343, 347-48 (1978), concluded that local social services districts are agents of the state under Social Services Law § 133, that case focused on a county’s role in implementing fair hearing decisions as an agent of the state. That is not the situation presented to this Court. Thus, Beaudoin is not determinative.
The City defendants assert that imposing liability on them under § 133 would require a transfer of funds from the state treasury and violate the doctrine of sovereign immunity. That argument lacks merit because “the county’s duty to provide assistance is not dependent upon the receipt of equivalent money from the State and the cases have so held.” Jones, 37 N.Y.2d at 55. Indeed, courts have imposed liability on local government entities for violations of § 133. See Henrietta D. v. Giuliani, 119 F.Supp.2d 181, 219-20 (E.D.N.Y.2000), aff’d, Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir.2004).
The experts agree that the City defendants were in compliance with the same-day requirement for immediate needs grants 69 percent of the time. (Pls. Findings ¶ 58.) Moreover, the City defendants erroneously denied immediate needs grants to approximately 47 percent of eligible applicants. (Supp. Pollner Rep. Table 5 at 9; Pls. Ex. 49: Fourth Faust Rep., Table B-3.) Those statistics compel the conclusion that the City defendants are not in full compliance with their obligations under New York Social Services Law § 133.
3. Separate Determinations for Food Stamps and Medicaid Although the City defendants implemented remedial
14

Reynolds v. Giuliani
measures to assure separate determinations for food stamps and Medicaid, the September 2000 Audit revealed inadequate performance. The credible statistical proof revealed that separate determinations for food stamps and Medicaid were made only about 14 percent of the time. (Fourth Faust Rep. ¶ 64; Supp. Pollner Rep., Table 19 at 20.) Thus, the City defendants are not in strict compliance with their obligation under 7 C.F.R. § 273.2(b)(3).
4. Application Withdrawals Forty-five percent of all food stamp application withdrawals were based on misleading or inaccurate information. With such an error rate, the City defendants are not in full compliance with the applicable federal regulations. See 42 C.F.R. §§ 435.913, 435.909; see also, e.g., Caswell, 583 F.2d at 12-13.
5. Provision of Notices While the City’s performance with respect to the provision of notices is better, non-compliance in the range of 20 percent is not “de minimus.” See Withrow, 942 F.2d at 1388. Moreover, the City defendants failed to provide needed information on the W-145HH and M-3 forms more than 50 percent of the time. See supra Section 1.B.5. ¶¶ a, b, c, d, e, f. Because the law requires that the notices be completed correctly, this Court finds that the City defendants have not met their obligations under 7 C.F.R. § 273.10(g)(1), 42 C.F.R. §§ 435.911, 435.912 and 18 N.Y.C.R.R. §§ 351.8(b) and 358-2.2(a).
6. Access *21 HRA has a policy in place emphasizing applicants’ right to apply for benefits on their initial contact at a Center. That policy is enforced through the “spot check” program. The evidence does not demonstrate that the City defendants have engaged in a pattern or policy of denying access.
D. The State Defendants States that participate in the food stamp and Medicaid programs can either designate a single state agency to administer the programs or, as New York has done, can implement the programs on a decentralized basis through local agencies. See 7 U.S.C. § 2012(n); 42 U.S.C. § 1396a(a)(1). While states may delegate administrative responsibility for the day-to-day oversight of these programs, “ ‘ultimate responsibility’ for compliance with

[their] requirements nevertheless remains at the state level.” Robertson v. Jackson, 972 F.2d 529, 533 (4th Cir.1992) (citation omitted); Woods v. United States, 724 F.2d 1444, 1447-48 (9th Cir.1984) (State of California could be held responsible for violations of Food Stamp Act committed by San Francisco City government); Reynolds III, 118 F.Supp.2d at 385.
For administration of these public welfare programs, local social services districts, including the City of New York, are considered “agents of the state.” See Reynolds III, 118 F.Supp.2d at 386. The Food Stamp Act expressly defines the term “State agency” as “the agency of State government, including the local offices thereof, which has the responsibility for the administration of the federally aided public assistance programs within such State....” 7 U.S.C. § 2012(n). Similarly, states bear the ultimate responsibility for supervising compliance with the Medicaid Act and state cash assistance programs. See Hillburn v. Maher, 795 F .2d 252, 260 (2d Cir.1986) (“single State agency” required to administer Medicaid to avoid lack of accountability); Beaudoin, 45 N.Y.2d at 347-48 (“In the administration of public assistance funds, whether they come from Federal, State or local sources ... the local commissions act on behalf of and as agents for the State.”).
Thus, as this Court held in Reynolds III, the Food Stamp and Medicaid Acts require participating states to administer these programs and actively supervise local agencies to ensure compliance. 118 F.Supp.2d at 385-86; see also Beaudoin, 45 N.Y.2d at 347-48 (holding that the same rule applies for state cash assistance programs). Therefore, a violation of plaintiffs’ rights under the Food Stamp, Medicaid and cash assistance programs by City defendants can “give[ ] rise to corresponding Section 1983 claims against the State defendants.” Reynolds III, 118 F.Supp.2d at 386.
The State defendants have taken various measures to foster compliance by the City Defendants. OTDA has used the ME, PA and CAP reviews to monitor performance. In 2000, it began reporting the results of those reviews to the City defendants. (Ptak Decl. ¶¶ 52-53.) In addition, OTDA required HRA to submit regular reports for CAP components in each Center until outstanding issues were resolved. (Ptak Supp. ¶ 18.) OTDA also issued directives requiring adherence to mandates such as the need to make separate eligibility determinations. (Ptak Decl. ¶¶ 40, 43.) DoH implemented various training programs for the City defendants and has also provided direct supervision for the City’s training programs. (Rice Decl. ¶¶ 23, 29, 31; McElligot Decl. ¶¶ 7-8.) Moreover, the State fair hearing process provides a
15

Reynolds v. Giuliani
means to ensure correct determinations for public assistance applications. (Hanks Decl. ¶¶ 3-4.)
*22 However, the City defendant’s failure to satisfy their obligations under the Food Stamp and Medicaid Acts, as revealed by the low compliance levels, is persuasive evidence that the State defendants have failed in their oversight obligations. Despite the State defendants’ remedial measures, only 65 percent of eligible applicants received expedited food stamps within seven days. Moreover, nearly half of all applications for immediate needs grants were improperly denied. More than half of all withdrawn cash assistance applications were withdrawn for improper reasons. By any measure, those results are not within the de minimus range required by the Food Stamp and Medicaid Acts. See Withrow, 942 F.2d at 1388. They underscore the fact that the State defendants’ curative initiatives have not had the desired prophylactic effect. Thus, the State defendants are not fulfilling their “ultimate responsibility” of ensuring compliance. See Robertson, 972 F.2d at 533. This conclusion is consistent with the January 1999 USDA Report noting a “lack of effective state agency oversight.” (Pls. Ex. 33, at 17.) A contrary holding would ignore New York City’s role as an agent of the state, see 7 U.S.C. § 2012(n); 42 U.S.C. § 1396a(a)(1), and allow the State to avoid its responsibility for overseeing the food stamp and Medicaid programs. See Hillburn, 795 F.2d at 260 (holding that the Medicaid Act’s single state agency provision is intended to avoid “a lack of accountability for the appropriate operation of the program”); see also Woods, 724 F.2d at 1447 (“The Food Stamp Act places responsibility for the administration of the food stamp

program on the state.”). That would be inconsistent with the State’s non-delegable duty to administer the food stamp and Medicaid programs under 7 U.S.C. § 2020 and 42 U.S.C. § 1396a, respectively. Plaintiffs’ request for declaratory and injunctive relief as to the State defendants is therefore granted.
CONCLUSION
For the foregoing reasons, the plaintiff class is entitled to a permanent injunction requiring the City defendants and the State defendants to: (i) provide expedited food stamp service to eligible applicants within five days; (ii) provide temporary assistance to applicants for Medicaid, food stamps or cash assistance who are in immediate need in accord with N.Y. Soc. Serv. Law § 133; (iii) separately process applications for food stamps when the applications for cash assistance are denied or withdrawn; (iv) send notices to applicants confirming voluntary withdrawals for Medicaid in accord with 42 C.F.R. § 435.913 and document such withdrawals pursuant to 7 C.F.R. § 273.2(c)(6); and (v) provide adequate and timely notice by correctly completing Forms W-145HH and M-3.
The parties are directed to submit a proposed final judgment consistent with this Amended Memorandum and Opinion by February 17, 2005.

16

 
 Reynolds v. Giuliani

2005 WL 3428213 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Lakisha REYNOLDS, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, and Elston Richards, on their own behalf and on behalf of all others similarly situated,
Plaintiffs, v.
Rudolph GIULIANI, as Mayor of the City of New York, Jason Turner, as Commissioner of the New
York City Human Resources Administration, Brian J. Wing, as Commissioner of the New York
State Office of Temporary and Disability Assistance, and Barbara Debuono, as
Commissioner of the New York State Department of Health, Defendants.
No. 98 Civ. 8877(WHP). | Dec. 14, 2005.
Attorneys and Law Firms
Henry Freedman, New York, NY, for Plaintiffs.
Yisroel Schulman, New York Legal Assistance Group, New York, NY, for Plaintiffs.
Scott Rosenberg, The Legal Aid Society, Civil Division, New York, NY, for Plaintiffs.
Kenneth Rosenfeld, Northern Manhattan Improvement Corp., New York, NY, for Plaintiffs.
Jonathan L. Pines, Assistant Corporation Counsel, of the City of New York, New York, NY, for the City Defendants.
Caroline M. Brown, Covington & Burling, Washington, D.C., for the City Defendants.
James M. Hershler, William H. Bristow III, Assistant Attorneys General of the State of New York, New York, NY, for the State Defendants.
Opinion
JUDGMENT

PAULEY, J.
*1 This class action, having been tried without a jury before the Honorable William H. Pauley III, United States District Judge, and this Court having issued its Amended Memorandum and Opinion on February 14, 2005,
NOW, THEREFORE, this Court does hereby ORDER, ADJUDGE AND DECREE:
DECLARATORY RELIEF
Pursuant to 28 U.S.C. §§ 2201 and 2202 and Rules 54, 57 and 58 of the Federal Rules of Civil Procedure, this Court makes the following declarations as of April 2, 2001 concerning the City and State Defendants:
1. With respect to the City Defendants, this Court declares that they failed to:
(a) Provide expedited food stamp service to class members eligible for expedited processing of their food stamp application within seven (7) days after the date of the application, in accord with 7 U.S.C. § 2020(e)(9) and 7 C.F.R. § 273.2(i)(3);
(b) Process class members’ applications for food stamps separately when the application for cash assistance was denied or withdrawn, in accord with 7 U.S.C. §§ 2014(b) and 2020(i)(2) and 7 C .F.R. § 273.2(b)(3);
(c) Process class members’ applications for Medicaid separately when the application for cash assistance was denied or withdrawn, in accord with 42 U.S.C § 1396a(a)(8) and 42 C.F.R. §§ 435.909 and 435.913;
(d) Provide class members adequate and timely notice confirming voluntary withdrawals for Medicaid in accord with 42 C.F.R. § 435.913 and/or document the withdrawals of food stamp applications in accord with 7 C.F.R. § 273.2(c)(6);
(e) Provide class members with adequate and timely notice of decisions on eligibility for cash assistance (including immediate needs cash grants), food stamps (including expedited food stamps), and Medicaid applications by correctly completing the applicable forms in accord with 7 C.F.R. § 273.10(g)(1); 42 C.F.R. §§ 435.911 and 435.912 and
1

Reynolds v. Giuliani
18 N.Y.C.R.R. §§ 351.8(b) and 358-2.2(a);
(f) Provide class members with accurate information concerning eligibility for cash assistance, food stamps or Medicaid in relation to a withdrawal from the cash assistance, food stamp or Medicaid programs;
(g) Provide expedited food stamp service to class members eligible for expedited processing of their food stamp applications within five (5) days of the date of application in accord with 18 N.Y.C.R.R. § 387.8(a)(2)(i)(a); and
(h) Provide immediate needs grants on the same day of application to eligible class members in accord with N.Y. Soc. Serv. L. § 133 and 18 N.Y.C.R.R. § 351.8(c)(4).
2. With respect to the State Defendants, this Court declares that they failed to adequately supervise the City Defendants’ compliance with the obligations set forth above in paragraphs 1(a)-(f) arising under the Food Stamp and Medicaid Acts.
INJUNCTIVE RELIEF
3. With respect to all applications filed at Job Centers or successor Centers, the City Defendants are hereby permanently enjoined to take the following actions:
(a) Provide expedited food stamp service to class members eligible for expedited processing of their food stamp application within seven (7) days after the date of the application, in accord with 7 U.S.C. § 2020(e)(9) and 7 C.F.R. § 273.2(i)(3);
*2 (b) Process class members’ applications for food stamps separately when the application for cash assistance was denied or withdrawn, in accord with 7 U.S.C. §§ 2014(b) and 2020(i)(2) and 7 C .F.R. § 273.2(b)(3);
(c) Process class members’ applications for Medicaid separately when the application for cash assistance was denied or withdrawn, in accord with 42 U.S.C § 1396a(a)(8) and 42 C.F.R. §§ 435.909 and 435.913;
(d) Provide class members adequate and timely notice confirming voluntary withdrawals for Medicaid in accord with 42 C.F.R. § 435.913 and/or document the withdrawals of food stamp applications in accord with 7 C.F.R. § 273.2(c)(6);

(e) Provide class members with adequate and timely notice of decisions on eligibility for cash assistance (including immediate needs cash grants), food stamps (including expedited food stamps), and Medicaid applications by correctly completing the applicable forms in accord with 7 C.F.R. § 273.10(g)(1); 42 C.F.R. §§ 435.911 and 435.912 and 18 N.Y.C.R.R. §§ 351.8(b) and 358-2.2(a);
(f) Provide class members with accurate information concerning eligibility for cash assistance, food stamps or Medicaid in relation to a withdrawal from the cash assistance, food stamp or Medicaid programs;
(g) Provide expedited food stamp service to class members eligible for expedited processing of their food stamp applications within five (5) days of the date of application in accord with 18 N.Y.C.R.R. § 387.8(a)(2)(i)(a); and
(h) Provide immediate needs grants on the same day of application to eligible class members in accord with N.Y. Soc. Serv. L. § 133 and 18 N.Y.C.R.R. § 351.8(c)(4).
4. The State Defendant Commissioner of the New York State Office of Temporary and Disability Assistance (“OTDA”) is hereby permanently enjoined to supervise the City Defendants’ compliance with the aforesaid obligations in paragraphs 3(a)-(f) arising under the Food Stamp Act, and the State Defendant Commissioner of the New York State Department of Health (“DOH”) is hereby permanently enjoined to supervise the City Defendants’ compliance with the aforesaid obligations in paragraphs 3(a)-(f) arising under the Medicaid Act.
NOTICE OF RIGHTS
5. The City Defendants are to post signs in each Job Center or successor Center and provide notice in the application materials distributed at those Centers that applicants for food stamps will be evaluated for expedited food stamp processing and receive expedited service if qualified, will receive immediate needs grants if eligible, and will have their applications for food stamps and Medicaid determined separately if their application for cash assistance is withdrawn or denied.
INDIVIDUAL RELIEF
2

Reynolds v. Giuliani
6. Without diminishing the right of the plaintiff class to seek enforcement of this Judgment, the City Defendants will provide Plaintiffs’ counsel with a mechanism to notify them of written complaints regarding the individual cases in which the City Defendants allegedly violated the terms of this Judgment. The City Defendants will investigate the alleged incident(s), take any appropriate steps required to resolve the issue(s) concerning each individual case (including issuing benefits to eligible applicants), and report the results of such investigation, including what steps, if any, were taken to resolve the issue(s), in writing to Plaintiffs’ counsel. Such report shall be provided within five (5) business days of receiving Plaintiffs’ counsel’s report of the alleged incident(s), provided, however, that the timeframe for response shall be two (2) business days when the alleged incident(s) concern the provision of expedited food stamp service or immediate needs cash grants and the incident is reported within five (5) business days of the date of application. No provision in this Judgment shall infringe upon any individual class member’s right to request a fair hearing concerning that individual’s cash assistance, food stamps or Medicaid benefits or to seek judicial review of the fair hearing decision.
MONITORING
*3 7. Beginning March 31, 2006, the City Defendants shall provide quarterly reports to Plaintiffs’ counsel covering the prior three (3) months regularly prepared by the City Defendants to track their performance in meeting their obligations under paragraph 3 of this Judgment, including, but not limited to, a report documenting, by Center and by month, the percentage and the number of expedited food stamps provided within five (5) days of application.
8. Beginning March 31, 2006, the State Defendants shall provide quarterly reports to Plaintiffs’ counsel covering the prior three (3) months regularly prepared by the State Defendants which track their performance in meeting their obligations under paragraph 4 of this Judgment.
9. Semiannually, the City Defendants will a review systematic sample of 200 applications submitted in the months of April and October respectively.
(a) These reviews will be conducted in June and December and will reflect the following:
(i) For each application in which the applicant did not receive expedited food stamps, the City Defendants will

determine whether the applicant was eligible for expedited food stamps.
(ii) For each application in which the applicant did not receive expedited food stamps on the same day of application and in which the applicant did not receive a “no food” immediate needs cash grant, the City Defendants will determine whether the applicant was eligible for a “no food” immediate needs cash grant.
(b) In addition to the determinations set forth in 9(a) above, the City Defendants will provide Plaintiffs’ counsel with the following documentation for each application reviewed:
(i) The W-145HH notice (or successor notice), the successor notice), the M-3 notice (or successor notice), and any additional notices concerning separate food stamp and/or Medicaid applications, as well as information, if available, on whether each notice was printed and/or mailed to the applicant.
(ii) The “All Change Actions” printout and, if the printout does not indicate whether and when any separate food stamp and Medicaid applications are accepted or denied, and any denial code, documents, if available, that include this information.
Upon reasonable notice, the City Defendants will make the reviewed files available for inspection by Plaintiffs’ counsel.
10. Semiannually, the City Defendants will review a systematic sample of 50 cash assistance applications withdrawn in the months of April and October respectively. These reviews will be conducted in June and December and the City Defendants will provide Plaintiffs’ counsel with a copy of the complete case file pertaining to each withdrawn application reviewed.
11. Beginning June 30, 2006, OTDA will conduct semiannual reviews of the City Defendants’ compliance with the Food Stamp Act, and DOH will conduct semiannual reviews of the City Defendants’ compliance with the Medicaid Act as set forth in paragraph 3 of this Judgment. The State Defendants will provide Plaintiffs’ counsel with the results of these reviews in August and February respectively.
COURT’S ENFORCEMENT JURISDICTION
*4 12. In the event that Plaintiffs’ counsel believes that
3

Reynolds v. Giuliani
Defendants’ have failed to comply with this Judgment, Plaintiffs’ counsel shall notify Defendants’ counsel in writing of any alleged deficiency and shall meet and confer prior to seeking judicial intervention.
ATTORNEYS’ FEES 13. Plaintiffs are entitled to reasonable attorneys’ fees, as

provided by 42 U.S.C. § 1988, and costs and disbursements related to their claims brought under 42 U.S.C. § 1983. The parties are directed to meet and confer regarding reasonable attorneys’ fees, costs and disbursements.
SO ORDERED:

4

 
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 01/30/2007 12:55

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PAGE

IB./ [I:::

UNITED STATES DISTRICT COURT
S__O__U___T_H___E__R__N__D__I.S__T__R--I-C__T_.O__-F__N_.E__W____Y__O__R__K__ ~_ -----"---"--x

LAKISHA REYNOLDS, et al.,

- against-

Plaintiffs,

STIPULATION AND ORDER

RUDOLPH GIULIANI, et al.,

98 Civ. 8877 (Wfl:P)

Defendants.

_____ - -- -"-- ___ - __ -- -

- -- - - - - - - - - - - - - - -- - - __ a

- - x - - - " - - - - - - - - - - - - - - - -

WHEREAS, plaintiffs Lakisha Reynolds, Georgina Bonilla, April

Sm.iley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, and Elston Richards (the "Plaintiffs")

commenced this action against defendants Rudolph Giuliani and Jason Turner (the "City

Defendants"), and Brian J. Wing alld Barbara DeBuono (the "State Defendants") by the filing of

a summons and complaint seeking declaratory and injunctive relief on behalf of a proposed

plaintiff class; and

WllEREAS, the District Court (per the Honorable William H. Pauley III.

USDJ) certified a plaintiffclass ("Plaintiff Class"); and

WHEREAS, the Plaintiff Class is represented by the Welfare Law Center,

the Legal Aid Society, the New York Legal Assistance Group. Inc., and the Northern Manhattan

Improvement Corporation (the Plaintiffs' Counsel); and

WHEREAS, on February 14, 2005, the Court issued an Amended

Memorandum and Opinion finding, i1lter alia, the City and State Defendants liable to the

Plaintiff Class for violations of State and federal law, as set forth therein; and

WHEREAS, by a Judgment dated December 14, 2005, the Court awarded

the Plaintiff Class declaratory and injunctive relief as set forth therein, and deteJJTlined that the

01/30/2007

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Filed 01/31/07 Page 2 of 6

PAGE

D4,/ D::::

Class was entitled to reasonable fees and costs, pursuant to 42 U.S.C. § 1988; and

WHEREAS, the Plaintiff Class, by Notice of Motion. seeks an award of

fees and costs in this action for the period through December 14, 2005, pursuant to the p"wvisions

of 42 U.S.C. § 1988 and a..<; authorized by the Court in the Judgment; and WlIEREAS, the State Defendants have appealed from the Judgment; and

WHEREAS, the parties now seck. to the extent possible in the

circumstances, to resolve the issues of attomeys' fees without further litigation of the fee

application and on terms just and fair to all parties;

IT IS HEREBY STIPULATED, AGREED, AND ORDERED as

follows:

As TO THE Crt)' DEFENDANTS:
1. The City of New York shall pay the Plaintiff Class, and the Plaintiff Class

shall agree to accept, two million, five hundred and fifty-nine thousand, six hundred seventy-five

dollars and ninety-four cents ($2,559,675.94) ("City Fee Payment"), in full satisfaction of all

claims for attorneys' fees and costs sought by the Plaintiff Class as against the City Defendants

for the period through December 14,2005.

2. Payment of the City Fee Payment shall be made by checks. issued in the

amounts that follow, made payable to the following entities, and at the addresses shown:

Organization
New York Legal Assistance Group

Amount $ 688,775.72

Address
Yisrocl Schulman, 450 West 33rd St.. 11!h Floor, New York, NY 10001

Northern Manhattan Improvement Corp. $ 265,557.16

76 Wadsworth Avenue, New York, NY 10033

Legal Aid Society $ 922,937.84

Scott A. Rosenberg, The Legal Aid Society 199 Water Street, 3d Floor, New York, NY 10038

-2-

01/30/2007

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PAGE

05./0:=:

Welfare Law Center $ 682,405.22

275 Seventh Ave., Suite 1506, New York, NY 1000)

The City Defendants will deliver the City Fee Payment within sixty days of the date this

Stipulation is "so orderedt• by the Court. 3. In consideration of the payment of the City Fce Payment, the Plaintiff

Class agrees to the dismissal of that portion of its motion for attorneys' fees and costs that is

asserted against the City Defendants in this action, and to release all City Defendants, any

present or fenner employees or agents of the City of New York, and the City ofNcw York frow

,my and all claims [or fees and costs arising in connection with the above-captioned action from

its inception through Decembet 14, 2005, and this Stipulation shall be deemed a release to that

effect.

As TO THE STATE DftFENlM.tiI§;.

4. The State ofNew York shall pay the Plaintiff Class, and the PJ aintiff Class

shall agree to acceptt six hundred and thirty-nine thousand, nine-hundred and eighteen dollars and ninety~ejght cents ($639,918.98) ("State Fee Payment"), in full satisfaction of all claims for

attorneys' fees and costs sought by the Plaintiff Class as against the State Defendants for the

period through December 14, 2005.

5. Payment of the State Fee Payment by the State Defendants is subject to

the approval of all appropriate New York State officials in accordance with the provisions for

indemnification under New York Public Officers Law § 17, subdivision 3(a). In the event such

approval is denied, counsel for the State Defendants shall so notify the Plaintiffs' counsel within

five (5) days of thc disapproval. In the Elvent of such disapproval, plaintiffs shall have 90 days

from such notice within which to make a motion seeking from the State defendants fees, costs,

-3-

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PAGE 05,/8:'::

Case 1:98-cv-08877-WHP Document 255 Filed 01/31/07 Page 4 of 6

litigation expenses and disbursements.

6.

Plaintiffs shall promptly execute and deliver to the State

defendants' attorneys thc documents reasonably necessary to effect the State Fee Payment,

which includes any requisite payment vouchers. 7. Payment of the Fee Amount shall be made by checks, issued in the

amounts that follow, made payable to the following entities, and at the addresses shown:

Org~n ization New York Legal Assistance Group

Amount $ 179,450.53

Address
Ate Ylsroel Schulman, 450 West 33r<l St., 11 til Floor, New York, NY 10001

Northern Manhattan Improvement Corp. $ 66,373.91
Legal Aid Society $ 216,261.53

76 Wadsworth Avenue, New York, NY 10033
Scott A. Rosenberg, The Legal Aid Society 199 Water Street, 3d Floor, New York, 'NY 10038

Welfare Law Center $ 177,833.01

275 Seventh Ave., Suite 1506, New York, NY 10001

8. The State defendants' time to pay the amount set forth in paragraph "4" herein shall be tolled until the issuance of an order from tbe Second Circuit deciding State defendants' appeal of the Final Judgment entered in this action. Following that decision and any order thereon, the State defendant shall have thirty ("30") days to move this Court for an order modifying or vacating their obligation to pay pursuant to this Agreement. Any such motion shall be limited solely to the question of whether plaintiffs' status as prevailing parties has been altered by the decision ofthe Second Circuit Court of Appeals. Plaintiffs ,esorve and shall have the right to oppose any such motion.
9. If the Stale Defendants do not make a motion pursuant to ~ 8. then the State Defendants will deliver the Fee Payment within ninety days of the date of entry of the
-4-

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PAGE 07,/0::':

Court of Appeals' decision, with post-judgment interest accruing as of the date this Stipulation is so-ordered. If the Stat!;: defendants mako a motion pursuant to ., S, and the Court affirms or
modifies the amount of the State Fee Payment, then the State Defendants will deliver the State
Fec Payment as afflnned or modified by the Court's order within ninety days of the date of entry of the district court's decision on the motion, with post-judgment interest accruing as of the date this Stipulation is so~ordered.
10. In consideration of the payment of the Fec Payment, the Plaintiff Class agrees to the dismissal of that portion of its motion for attorneys' fces and costs that is asserted against the State Defendants in this action, and to release all the State Defendants, any present OT fonner employees or agents of the State of New York, and the State of New York from any and all claims for fees and costs arising in connection with the above-captioned action from its inception through December 14, 200S, and this Stipulation shall be deemed a release to that effect.
As TO ALL l'ARTIES,,:
It. This stipulation shall not be admissible in. nor is it related to, any other litigation or settlement negotiations outside of the above-captioned actions.
12. This Stipulation and Order contains all the terms and conditions agreed upon by the parties hereto, and no oral agreement entered into at any time nor any written agreement entered into prior to the ex;ecution of this Stipulation and Order regarding the subject matter of this agreement shall be deemed to exist, or to bind the parties hereto, or to vary the tenus and conditions contained herein.
13. Facs1mile signatures arc acceptable for execution and filing of this Stipulation.

- - -01-/30/2007

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PAGE ml D:':-:

DATED: NEW YORK, NEW YORK
January ,2007
DATED: January "30 ,2007 New York, New York
1.2 DATED: January ,2007
New York, New York
SO ORDERED: DATED; New York, New York
January 3 \ ,2007

THE WELFARE LAW CENTER, INC. MARC COHAN, Of Counsel Attorneys for Plaintiffs 275 Seventh Avenue, Suite 1205 New York, New York 10001-6708
(212)633-6%7; L-~

By. _ _-I~'-_ - _ ~ _ _ _ _ __

• MARC COHAN (MC

)

ANDREW M. CUOMO Attorney General of the State ofNew York Attorney for State Defendants 120 Broadway New York, New York 10271 (212) 416-8590

BY:~Iff~'3
JAMES M. HERSHLER

(

i

«
ll'

1

'

1

3

0

)

Assistant Attorney General

MICHAEL CARDOZO Corporation Counsel of the City ofNew York Attorney for City Defendants 100 Church Street New York, New York 10007 (212) 788-0933

By:_~~~~~~_ _ _ _ _ _ _ __
HAN PlNES (JP30n) is ant Corporation Counsel

-6-

 
 Case 1:98-cv-08877-WHP Document 258 Filed 04/23/10 Page 1 of 5

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------x LAKISHA REYNOLDS, et aI.,
Plaintiffs,
-against-

g~

USOCSDNY

~

JB)L()ECcUrMROENNITCALLY .1)iAtilni' :~

DOC It:

I - if

~~D~AE·T-E¥Ff·IL·E-Dt:::.4·:1:0:5:.~:lQ=·_· Ir

STIPULATION AND

ORDER

RUDOLPH GIULANI, et al.,

98 Civ. 8877 (WHP)

Defendants. ------------------------------------------------------------------x
WHEREAS, plaintiffs Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick,

Adriana Calabrese, Jenny Cuevas, and Elston Richards (the "Plaintiffs") commenced this action

against defendants Rudolph Giuliani and Jason Turner (the "City Defendants"), and Brian J.

Wing and Barbara DeBuono (the "State Defendants") by the filing of a summons and complaint

seeking declaratory and injunctive relief on behalf of a proposed plaintiff class; and

WHEREAS, the District Court (per the Honorable William H. Pauley III, USDJ)

certified a plaintiff class ("Plaintiff Class"); and

WHEREAS, the Plaintiff Class is represented by the National Center for Law and

Economic Justice (formerly the Welfare Law Center), the Legal Aid Society, the Northern

Manhattan Improvement Corporation, and the New York Legal Assistance Group, Inc.; and

WHEREAS, on February 14, 2005, the Court issued an Amended Memorandum and

Opinion finding, inter alia, the City and State Defendants liable to the Plaintiff Class for

violations of State and federal law, as set forth therein; and

Page 1 of 5

Case 1:98-cv-08877-WHP Document 258 Filed 04/23/10 Page 2 of 5

WHEREAS, by a Judgment dated December 14, 2005, the Court awarded the Plaintiff

Class declaratory and injunctive relief as set forth therein, and determined that the Class was

entitled to reasonable fees and costs, pursuant to 42 U.S.C. § 1988; and

WHEREAS, on January 31, 2007, the Court approved a Stipulation and Order settling

the claims of the Plaintiff Class for attorneys' fees, costs and disbursements against City and

State Defendants through December 14,2005; and

WHEREAS, the Plaintiff Class seeks an award of fees and costs in this action for the

period from December 15, 2005 through December 14,2008, pursuant to the provisions of 42

U.S.C. § 1988 and as authorized by the Court in the Judgment; and

WHEREAS, the parties now seek to resolve the issues of attorneys' fees without further

litigation ofthe fee application and on terms just and fair to all parties;

IT IS HEREBY STIPULATED, AGREED, AND ORDERED as follows:

I.

The City of New York shall pay the Plaintiff Class, and the Plaintiff Class shall

agree to accept, two hundred and seventy-five thousand dollars ($275,000.00)

("City Fee Payment"), in full satisfaction of all claims for attorneys' fees and

costs sought by the Plaintiff Class as against the City Defendants for the period

from December 15, 2005 through December 14, 2008.

Page 2 of 5

Case 1:98-cv-08877-WHP Document 258 Filed 04/23/10 Page 3 of 5

2.

Payment of the Fee Amount shall be made by checks, issued in the amounts that

follow, made payable to the following entities, and at the addresses shown:

Organization
New York Legal Assistance Group

Amount $ 130,702.89

Address
Yisroel Schulman, 450 West 33rd St., 11th Floor, New York, NY 10001

Legal Aid Society $ 52,694.64

Scott A. Rosenberg, The Legal Aid Society 199 Water Street, 3d Floor, New York, NY 10038

National Center for $ 91,602.47 Law and Economic Justice

275 Seventh Ave., Suite 1506, New York, NY 10001

The City Defendants will deliver the Fee Payment within ninety days of the date this Stipulation

is "so ordered" by the Court.

3.

In consideration of the payment of the City Fee Payment, the Plaintiff Class

agrees to release all City Defendants, any present or former employees or agents

of the City of New York, and the City of New York from any and all claims for

fees and costs arising in connection with the above-captioned action from

December 15, 2005 through December 14, 2008, and this Stipulation shall be

deemed a release to that effect.

4.

This stipulation shall not be admissible in, nor is it related to, any other litigation

or settlement negotiations outside of the above-captioned action.

5.

This Stipulation and Order contains all the terms and conditions agreed upon by

the parties hereto, and no oral agreement entered into at any time nor any written

agreement entered into prior to the execution of this Stipulation and Order

regarding the subject matter of this agreement shall be deemed to exist, or to bind

the parties hereto, or to vary the terms and conditions contained herein.

Page 3 of 5

Case 1:98-cv-08877-WHP Document 258 Filed 04/23/10 Page 4 of 5

6.

Facsimile signatures are acceptable for execution and filing of this Stipulation.

DATED: April2, ,2010
By:~~~~~_ _~~_ _ _ _ _ __ _ _ Randal S. Jeffrey

~~)~)
By/lIthlID Pines
{ : / Assistant Corporation Counsel

YISROEL SCHULMAN, ESQ. NEW YORK LEGAL ASSISTANCE GROUP Randal S. Jeffrey, of Counsel Jason Parkin, of Counsel Miriam Werner, of Counsel 450 West 33rd Street, 11 th Floor New York, New York 10001 Tel. (212) 613-5000

MICHAEL A. CARDOZO Corporation Counsel of the City of New York 100 Church Street, Room 2-178 New York, New York 10007 Tel. (212) 788-0933
Attorneyfor Defendants

WELFARE LAW CENTER, INC .• Marc Cohan, Director of Litigation Petra T. Tasheff, of Counsel 275 Seventh Avenue, Suite 1506 New York, New York 10001 Tel. (212) 633-6967
THE LEGAL AID SOCIETY Steven Banks, Attorney-in-Chief Scott Rosenberg, Attorney-in-Charge,
Law Reform, Civil Practice Kathleen Kelleher, of Counsel 199 Water Street, 3d Floor New York, New York 10038 Tel. (212) 577-3300

SO ORDERED:
~, bb~\>St,)L..
WILLIAM H. PAULEY III U.J.D.J.
V i ~3 I 01.010

(Additional Counsel Listed on Following Page)

Page 4 of 5

Case 1:98-cv-08877-WHP Document 258 Filed 04/23/10 Page 5 of 5
NORTHERN MANHATTAN IMPROVEMENT CORP.
Kenneth Rosenfeld 76 Wadsworth Avenue New York, New York 10036 Tel. (212) 822-8300 Attorneys/or Plaintifft and PlaintijJClass
SO ORDERED: DATED: NEW YORK, NEW YORK
April ,2010 WILLIAM H. PAULEY III
U.S.D.J.
Page 5 of 5

 
 Case 1:98-cv-08877-WHP Drr,=oU=cS=u=Dm=C=e=nS=t=D2=6N:;0::Y----F-il-ed--12-/-23/10 Page 1 of 8 DOCUMENT ELECTRONICALLY FILED DOC#:
UNITED STATES DISTRICT COUR DATE FILED:
SOUTHERN DISTRICT OF NEW YOIIS:K:=====~~~~~ ----------------------------------------------------------------------- x
LAKISHA REYNOLDS, et at.,

-againstRUDOLPH GIULIANI,

Plaintiffs,

STIPULATION 98 Civ. 8877 (WHP)

Defendants.

----------------------------------------------------------------------- x

WHEREAS this Court issued a Judgment, dated December 14, 2005 ("Judgment") finally resolving plaintiffs' claims against the City defendants in the abovereferenced action on behalf of a class of plaintiffs; and
WHEREAS the Judgment requires the City Defendants to process class members' applications for Food Stamp benefits separately when the application for cash assistance was denied or withdrawn ("Food Stamp separate determination" or "FSD"), in
accordance with 7 U.S.C. §§ 2014(b) and 2020(i)(2) and 7 C.F.R. § 273.2 (Judgment at 1 3(b));
and WHEREAS, the parties now desire to resolve an issue of outstanding retroactive
benefits owed to certain class members for FSDs that were not made as required by law ("restored Food Stamp benefits") without further proceedings and without admitting any fault or liability; and
WHEREAS the parties acknowledge that, because it is in the best interests of class members entitled to restored Food Stamp benefits to provide such relief as expeditiously as possible, for such class members it is appropriate to use a process based upon average monthly grants for households of sizes comparable to those of the affected class members; and

- 1-

Case 1:98-cv-08877-WHP Document 260 Filed 12/23/10 Page 2 of 8
WHEREAS the parties have agreed to undertake the process of restoring restored Food Stamp benefits to class members in phases beginning with those class members who required, but did not receive, a FSD between December 15,2005 and November 30, 2006;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, as follows:
1. Within ten (l0) days after the effective date of this Stipulation, the New York City Human Resources Administration ("HRA") will identify certain households who required, but did not receive, a FSD between December 15, 2005 and November 30, 2006, as a result of an application at a Job Center in which a request for cash assistance was denied (rejected or closed) ("identified households"), using the following identifiers:
(a) Public assistance/Food Stamp denials under codes that require a FSD as listed in the Food Stamp Separate Determination Desk Guide where the transaction date associated with the codes was between December 15, 2005 and November 30, 2006;
(b) Public assistance denials on expedited Food Stamp cases using Food Stamp closing code Y99 where the transaction date associated with the code was between December 15,2005 and November 30, 2006;
(c) Food Stamp denials under rejection code J05 where the transaction date associated with the code was between December 15, 2005 and November 30, 2006. Households that became active for Food Stamp benefits within 210 days of the Job Center denial 2. HRA will issue, pursuant to paragraphs 3 and 4 of this Stipulation, restored Food Stamp benefits to identified households that became active for Food Stamp benefits within 210 days of the denial. The restored Food Stamp benefits will be added to the household's Electronic Benefit Transfer ("EBT") account. 3. The restored Food Stamp benefits for each identified household will be calculated by multiplying (a) the amount of the household's monthly Food Stamp grant once the
-2-

Case 1:98-cv-08877-WHP Document 260 Filed 12/23/10 Page 3 of 8
household became active for Food Stamp benefits, by (b) the number of months of lost Food Stamp benefits from the application file date until the month prior to the first month of benefits issued when the household became active for Food Stamp benefits.
4. Within thirty (30) days of the effective date of this Stipulation, HRA will issue the restored Food Stamp benefits, whether or not the household is currently active for Food Stamp benefits.
5. Within thirty (30) days of the effective date of this Stipulation, HRA will send a notice to identified households titled "Notice of Restored Food Stamp Benefits - Cases Activated Within 210 Days of the Cash Assistance Denial (Form W-137G)" ("Form W-I37G"), which will inform such households of the amount of, and the way to redeem, the restored Food Stamp benefits.
6. Households that have an active EBT card will have access to the restored Food Stamp benefits within thirty (30) days of the effective date of this Stipulation. Households that do not have an active EBT card will be informed by Form W-137G to come to the HRA Special Projects Center at 172 Water Street, New York, NY 10038, or to call a designated telephone number. HRA will provide each household that uses this process a referral for an EBT card so that the household will have access to the restored benefit within ten (10) days after contacting HRA.
7. Prior to the Form W-137G notices being sent pursuant to paragraph 5 of this Stipulation, HRA will provide to plaintiffs' counsel a list that identifies by name and case number each identified household to which the Form W-137G will be mailed, indicating the amount of restored Food Stamp benefits that HRA will issue to each household.
8. If the Form W-137G is returned as undeliverable, then HRA will retain a "People Locator" service for the purpose of finding the household and will mail a new notice to
-3-

Case 1:98-cv-08877-WHP Document 260 Filed 12/23/10 Page 4 of 8
any household for which the People Locator provides a different address. For those households for which the People Locator cannot provide an updated address, no further action will be taken on their case and a case note shall be made in the case file regarding HRA's inability to contact the household regarding the provision of restored Food Stamp benefits.
Households that did not become active for Food Stamps within 210 days of the Job Center denial
9. For each identified household that did not become active for Food Stamp benefits and was not denied Food Stamp benefits by a Non-Cash Assistance Food Stamp (NCA FS) Center within 210 days of the denial, HRA will mail a Food Stamp Outreach Notice (W137K)" ("Outreach Notice") to the household's current or last-known address in the Welfare Management System ("WMS"). The mailing will take place over a period of six months, during which time HRA will mail the Outreach Notice to identified households in the approximate order in which the identified households' applications for benefits were denied.
10. Prior to the Outreach Notices (Form W-137K) being sent pursuant to paragraph 10 of this Stipulation, HRA will provide to plaintiffs' counsel a list that identifies by name and case number each identified household to which the Outreach Notices will be mailed.
11. If the Outreach Notice (Form W-I37K) is returned as undeliverable, then HRA will retain a "People Locator" service for the purpose of finding the household and will mail a new notice to any household for which the People Locator provides a different address. For those households for which the People Locator cannot provide an updated address, no further determination regarding the amount of restored Food Stamp benefits shall be made and a case note shall be made in the closed case file regarding HRA' s inability to contact the household regarding the provision of restored Food Stamp benefits.
-4 -

Case 1:98-cv-08877-WHP Document 260 Filed 12/23/10 Page 5 of 8
12. Form W-137K will inform such households that they did not get a separate
determination of Food Stamp eligibility when their cash assistance case was closed during the
period December 15, 2005 through November 30, 2006. It will also inform such households that
if they would like HRA to evaluate their eligibility for restored Food Stamp benefits, they must
complete the bottom ("Outreach Response") of the Outreach Notice and return it in the postage-
paid envelope included in the mailing, addressed to the Reynolds Retroactive Relief Project,
Special Projects Center, 172 Water Street, New York, NY 10038.
13. Upon receipt of the Outreach Response, designated workers at the HRA
Special Projects Center will review the information available in HRA's electronic case record
concerning the household's eligibility for Food Stamp benefits retroactive to the date the denied
application was filed.
(a) If a review of the information in the electronic case record is sufficient to determine a household's eligibility for restored Food Stamp benefits, the designated worker will calculate the restored Food Stamp benefits for each household by multiplying (i) the applicable standard monthly restored Food Stamp benefit amount based on household size, which has been agreed upon by the parties in the Reynolds litigation and approved by the United States Department of Agriculture, by (ii) the number of months of lost Food Stamp benefits. As a consequence of the process described herein, and for the reasons set forth above, the parties agree that it will be unnecessary for the designated worker to determine the actual amount of Food Stamp benefits for which the household would have been eligible. The standard monthly restored Food Stamp benefit amounts are set forth in Exhibit A, annexed.
(b) If a review of the information in the electronic case record is not sufficient to determine a household's eligibility for restored Food Stamp benefits, the designated worker will send the household a completed "Request for Additional Information Retroactive Food Stamp Review (W-137J)," along with a postage-paid envelope addressed to the Reynolds Retroactive Relief Project, HRA Special Projects Center, 172 Water Street, New York, NY 10038. The designated worker will complete the W-137J by listing the requested information and annotating a return date of fourteen (14) calendar days from the date the W-137J is mailed to the household. The designated worker will retain a copy of the W137J.
-5-

Case 1:98-cv-08877-WHP Document 260 Filed 12/23/10 Page 6 of 8
14. For every household reviewed pursuant to paragraph 13, above, the designated worker will complete an "Outcome of Retroactive Food Stamp Review (Form W137H)," which will inform the household of the decision on the household's eligibility for restored Food Stamp benefits and of their right to appeal the decision.
(a) For households that submit an Outreach Response pursuant to paragraph 12, above, HRA will both send the Form W-137H to the household and issue the restored Food Stamp benefits within (10) days of the determination regarding entitlement to restored Food Stamp benefits made pursuant to paragraph 7 of this Stipulation.
(b) HRA will follow the procedure for providing access to restored Food Stamp benefits detailed in paragraph 6 of this Stipulation for households that do not have an active EBT card. 15. Prior to sending the Form W-137H pursuant to the previous paragraph, HRA will provide to plaintiffs' counsel a list which identifies by name and case number each household sent a notice pursuant to that paragraph, and indicates the amount, if any, of restored benefits for each household. 16. Households that did not become active for Food Stamp benefits within 210 days of the Job Center denial, subsequently reapplied for Food Stamp benefits and became active for Food Stamp benefits, and have been determined to be eligible for restored Food Stamp benefits pursuant to this Stipulation will be issued restored Food Stamp benefits for the months between the filing date of the denied application and the date of the reapplication for NCA Food Stamp benefits during which the household did not receive Food Stamp benefits. 17. Households that did not become active for Food Stamp benefits within 210 days of the Job Center denial, never subsequently reapplied for Food Stamp benefits, and have been determined eligible for restored Food Stamp benefits pursuant to this Stipulation will be issued twelve months of Food Stamp benefits retroactive to the filing date of the denied application.
-6-

Case 1:98-cv-08877-WHP Document 260 Filed 12/23/10 Page 7 of 8 " .
18. Households that did not reapply for Food Stamp benefits within 210 days of the Cash Assistance closing or denial but who were subsequently denied Food Stamp benfits by an NCA Food Stamp Center between 210 days and 365 days of the Cash Assistance closing or denial, and are determined eligible for restored Food Stamp benefits will be issued Food Stamp benefits from the filing date of the denied Cash Assistance/Food Stamp application up to the month prior to the filing date of denied subsequent NCA Food Stamp application.
19. Households that did not reapply for Food Stamp benefits within 210 days of the Cash Assistance closing or denial but who were subsequently denied Food Stamp benefits by an NCA Food Stamp Center after 365 days of the Cash Assistance closing or denial, and are determined eligible for restored Food Stamp benefits will be issued twelve months of restored Food Stamp benefits retroactive to the filing date of the denied Cash Assistance application.
20. Households that did not become active for Food Stamp benefits within 210 days of the Job Center denial, subsequently reapplied for Food Stamp benefits and were denied Food Stamp benefits by a Non-Cash Assistance Food Stamp (NCA FS) Center within 210 days of the Job Center denial will not be eligible for restored Food Stamp benefits pursuant to this Stipulation. Provisions Applicable to All Identified Households
21. Finger imaging will not be required for individuals in households whose only benefits are restored Food Stamp benefits issued pursuant to this Stipulation.
22. HRA will not deem the restored Food Stamp benefit an overpayment to the extent that such benefit is based upon the assumptions set forth in this stipulation at paragraphs 3 and 13(a), above, and in Exhibit A, annexed.
23. This Stipulation only concerns households who required, but did not receive, a FSD between December 15, 2005 and November 30, 2006, and is not and shall not be
- 7-

Case 1:98-cv-08877-WHP Document 260 Filed 12/23/10 Page 8 of 8

Attachment A
MONTHLY STANDARDIZED RESTORED BENEFIT AMOUNT BY HOUSEHOLD SIZE

HOUSEHOLD SIZE
1 2 3 4 5 6 7 8 9 10

RESTORED BENEFIT
$115 $209 $305 $376 $446 $554 $628 $737 $867 $969

 
 Case 1:98-cv-08877-WHP Document 261 Filed 07/22/11 Page 1 of 5

rr:============------~
USDC SDNY DOCUMENT

ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------ ----.-••••••-----.----------------.-x
LAKISHA REYNOLDS, et at.,

DOC#:------------------
DATE FILED: 9-\ L 7.../,

-against-

Plaintiffs,

STIPULATION AND ORDER

RUDOLPH GIULANI, et al.,

98 Civ. 8877 (WHP)

Defendants.
-----------------------------------------.--------.-.-------------x
WHEREAS, plaintiffs Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick,

Adriana Calabrese, Jenny Cuevas, and Elston Richards (the "Plaintiffs") commenced this action

against defendants Rudolph Giuliani and Jason Turner (the "City Defendants"), and Brian J.

Wing and Barbara DeBuono (the "State Defendants") by the filing of a summons and complaint

seeking declaratory and injunctive relief on behalf of a proposed plaintiff class; and

WHEREAS, the District Court (per the Honorable William H. Pauley III. USDJ)

certified a plaintiff class ("Plaintiff Class"); and

WHEREAS, the Plaintiff Class is represented by the National Center for Law and

Economic Justice (formerly the Welfare Law Center), the Legal Aid Society, the Northern

Manhattan Improvement Corporation, and the New York Legal Assistance Group, Inc.; and

WHEREAS, on February 14, 2005, the Court issued an Amended Memorandum and

Opinion finding, inter alia, the City and State Defendants liable to the Plaintiff Class for

violations of State and federal law, as set forth therein; and

Page 1 of 5

Case 1:98-cv-08877-WHP Document 261 Filed 07/22/11 Page 2 of 5

WHEREAS, by a Judgment dated December 14, 2005, the Court awarded the Plaintiff

CLass declaratory and injunctive relief as set forth therein, and determined that the Class was

entitled to reasonable fees and costs, pursuant to 42 U.S.C. § 1988; and

WHEREAS, on April 23,2010, the Court approved a Stipulation and Order settling the

claims of the Plaintiff Class for attorneys' fees, costs and disbursements against City and State

Defendants for the period from December 15, 2005 through December 14,2008; and

WHEREAS, the Plaintiff Class seeks an award of fees and costs in this action for the

period from December 15,2008 through June 14,2010, pursuant to the provisions of 42 U.S.c. §

1988 and as authorized by the Court in the Judgment; and

WHEREAS, the parties now seek to resolve the issues of attorneys' fees without further

litigation of the fee application and on terms just and fair to all patties;

IT IS HEREBY STIPULATED, AGREED, AND ORDERED as follows:

1.

The City of New York shall pay the Plaintiff Class, and the Plaintiff Class shall

agree to accept, eighty-six thousand dollars ($86,000.00) ("City Fee Payment"), in

full satisfaction of all claims for attorneys' fees and costs sought by the Plaintiff

Class as against the City Defendants for the period from December 15, 2008

through June 14,2010.

Page 2 of 5

Case 1:98-cv-08877-WHP Document 261 Filed 07/22/11 Page 3 of 5

2.

Payment of the Fee Amount shall be made by checks, issued in the amounts that

follow, made payable to the following entities, and at the addresses shown:

Organization
New York Legal Assistance Group

Amount $ 60,694.73

Address
Yisroel Schulman, 7 Hanover Square, 18th Floor New York. NY 10004

Legal Aid Society $ 14,989.79

Katie Kelleher, The Legal Aid Society 199 Water Street, 3d Floor, New York, NY 10038

National Center for $ 10,315.48 Law and Economic Justice

275 Seventh Ave., Suite 1506. New York, NY 10001

The City Defendants will deliver the Fee Payment within ninety days of the date this ,Stipulation

is "so ordered" by the Court.

3.

In consideration of the payment of the City Fee Payment, the Plaintiff Class

agrees to release all City Defendants, any present or former employees or agents

of the City of New York, and the City of New York from any and all claims for

fees and costs arising in connection with the above-captioned action from

December 15,2008 through June 14,2010. and this Stipulation shall be deemed a

release to that effect.

4.

This stipulation shall not be admissible in, nor is it related to. any other litigation

or settlement negotiations outside of the above-captioned action.

5.

This Stipulation and Order contains all the terms and conditions agreed upon by

the parties hereto, and no oral agreement entered into at any time nor any written

agreement entered into prior to the execution of this Stipulation and Order

regarding the subject matter of this agreement shall be deemed to exist, or to bind

the parties hereto, or to vary the terms and conditions contained herein.

Page 3 of 5

Case 1:98-cv-08877-WHP Document 261 Filed 07/22/11 Page 4 of 5

6.

Facsimile signatures are acceptable for execution and filing of this Stipulation.

DATED: July ,2011

BY:--~----~--~hPr---------­
Ranoal S. Jeffrey

By:~_ _~/~~"/V,,~,:.H0~'"~~=_~~~2~-_ _ _ _ _ _ _ _ _ __ _ _ <JoMt'han Pines ·As~istal1l Corporation Counsel

YISROEL SCHULMAN, ESQ.
NEW YORK LEGAL ASSISTANCE GROUP Randal S. Jeffrey, of Counsel Camille Zentner, of Counsel 7 Hanover Square. 18th Floor New York, New York 10004 Tel. (212) 613-5000

MICHAEL A. CARDOZO Corporation Counsel of the City of New York 100 Church Street, Room 2-178 New York, New York 10007 Tel. (2] 2) 788-0933
Attorney for Defendants

WELFARE LAW CENTER, INC. Marc Cohan, Director of Litigation Petra T. Tasheff, of Counsel 275 Seventh Avenue, Suite 1506 New York, New York 10001 Tel. (212) 633-6967

THE LEGAL AID SOCIETY Steven Banks, Attorney-in-Chief Scott Rosenberg, Attorney-in-Charge,
Law Reform, Civil Practice Kathleen Kelleher, of Counsel 199 Water Street, 3d Floor New York, New York 10038 Tel. (212) 577-3300

SO ORDERED:

~~'-J Q~
wlLilAMiL PAULEYIII U.&ID.i.".

H..=~

(Additional Counsel Listed on Following Page)

Page 4 of 5

Case 1:98-cv-08877-WHP Document 261 Filed 07/22/11 Page 5 of 5
NORTHERN MANHATTAN IMPROVEMENT CORP.
Kenneth Rosenfeld 76 WadswOlth Avenue New York, New York 10036 Tel. (212) 822-8300 Attorneys for Plaintiffs and Plaintiff Class
SO ORDERED: DATED: NEW YORK, NEW YORK
July ,2011 WILLIAM H. PAULEY III
U.S.D.J.
Page 5 of 5

 
 Case: 1:98-cv-8877 As of: 09/16/2012 11:51 PM EDT 1 of 30
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:98−cv−08877−WHP

CLOSED

Reynolds, et al v. Giuliani, et al Assigned to: Judge William H. Pauley, III Demand: $0 Case in other court: 00−09460. Cause: 42:1983 Civil Rights Act
Plaintiff
Lakisha Reynolds on her own behalf and on behalf of all others similarly situated

Date Filed: 12/16/1998 Date Terminated: 12/14/2005 Jury Demand: None Nature of Suit: 444 Civil Rights: Welfare Jurisdiction: Federal Question
represented by Adriene L. Holder The Legal Aid Society Civil Division 90 Church Street New York, NY 10007 (212) 577−3300 LEAD ATTORNEY
Anne K. Callagy The Legal Aid Society Civil Division 90 Church Street New York, NY 10007 (212) 577−3300 LEAD ATTORNEY
Christopher D. Lamb The Legal Aid Society Civil Division 90 Church Street New York, NY 10007 (212) 577−3300 LEAD ATTORNEY
Constance P. Carden New York Legal Assistance Group 450 West 33rd Street 11th Floor New York, NY 10001 (212) 750−0800 LEAD ATTORNEY
Esperanza Colon The Legal Aid Society Civil Division 90 Church Street New York, NY 10007 (212) 577−3300 LEAD ATTORNEY
Hwan−Hui Helen Lee Northern Manhattan Improvement Corp. 76 Wadsworth Avenue New York, NY 10036 (212) 822−8306 LEAD ATTORNEY
Joshua E. Goldfein The Legal Aid Society Civil Division 90 Church Street

Case: 1:98-cv-8877 As of: 09/16/2012 11:51 PM EDT 2 of 30

New York, NY 10007 (212) 577−3300 LEAD ATTORNEY

Kenneth Rosenfeld Northern Manhattan Improvement Corporation 76 Wadsworth Avenue New York, NY 10033 Email: kenrosenfeld@nmic.org LEAD ATTORNEY

Marc Cohan Welfare Law Center, Inc. 275 Seventh Avenue Suite 1506 New York, NY 10001 212−633−6967 Fax: 212−633−6371 Email: cohan@nclej.org LEAD ATTORNEY

Randal S. Jeffrey New York Legal Assistance Group 130 East 59th Street 14th Floor New York, NY 10022 (212) 750−0800 LEAD ATTORNEY

Rebecca Lynn Scharf Welfare Law Center, Inc. 275 Seventh Avenue Suite 1506 New York, NY 10001 718−877−0510 Fax: 212−633−6371 Email: scharf@welfarelaw.org LEAD ATTORNEY

Scott Alan Rosenberg The Legal Aid Society Civil Division 90 Church Street New York, NY 10007 (212) 577−3300 Email: srosenberg@legal−aid.org LEAD ATTORNEY

Yisroel Schulman New York Legal Assistance Group 450 West 33rd Street 11th Floor New York, NY 10001 (212) 750−0800 Fax: (212) 750−0820 LEAD ATTORNEY

Plaintiff
Georgina Bonilla on her own behalf and on behalf of all others similarly situated

represented by Adriene L. Holder (See above for address) LEAD ATTORNEY

Anne K. Callagy

Case: 1:98-cv-8877 As of: 09/16/2012 11:51 PM EDT 3 of 30

(See above for address) LEAD ATTORNEY

Christopher D. Lamb (See above for address) LEAD ATTORNEY

Constance P. Carden (See above for address) LEAD ATTORNEY

Esperanza Colon (See above for address) LEAD ATTORNEY

Hwan−Hui Helen Lee (See above for address) LEAD ATTORNEY

Joshua Gold Anderson Kill &Olick, P.C. 1251 Avenue of the Americas New York, NY 10020 212−278−1886 Fax: 212−278−1733 Email: jgold@andersonkill.com LEAD ATTORNEY

Kenneth Rosenfeld (See above for address) LEAD ATTORNEY

Marc Cohan (See above for address) LEAD ATTORNEY

Randal S. Jeffrey (See above for address) LEAD ATTORNEY

Rebecca Lynn Scharf (See above for address) LEAD ATTORNEY

Scott Alan Rosenberg (See above for address) LEAD ATTORNEY

Yisroel Schulman (See above for address) LEAD ATTORNEY

Plaintiff
April Smiley on her own behalf and on behalf of all others similarly situated

represented by Adriene L. Holder (See above for address) LEAD ATTORNEY

Anne K. Callagy (See above for address) LEAD ATTORNEY

Christopher D. Lamb (See above for address) LEAD ATTORNEY

Case: 1:98-cv-8877 As of: 09/16/2012 11:51 PM EDT 4 of 30

Plaintiff
Lue Garlick on her own behalf and on behalf of all others similarly situated

Constance P. Carden (See above for address) LEAD ATTORNEY
Esperanza Colon (See above for address) LEAD ATTORNEY
Hwan−Hui Helen Lee (See above for address) LEAD ATTORNEY
Joshua Gold (See above for address) LEAD ATTORNEY
Kenneth Rosenfeld (See above for address) LEAD ATTORNEY
Marc Cohan (See above for address) LEAD ATTORNEY
Randal S. Jeffrey (See above for address) LEAD ATTORNEY
Rebecca Lynn Scharf (See above for address) LEAD ATTORNEY
Scott Alan Rosenberg (See above for address) LEAD ATTORNEY
Yisroel Schulman (See above for address) LEAD ATTORNEY
represented by Adriene L. Holder (See above for address) LEAD ATTORNEY
Anne K. Callagy (See above for address) LEAD ATTORNEY
Christopher D. Lamb (See above for address) LEAD ATTORNEY
Constance P. Carden (See above for address) LEAD ATTORNEY
Esperanza Colon (See above for address) LEAD ATTORNEY
Hwan−Hui Helen Lee (See above for address)

Case: 1:98-cv-8877 As of: 09/16/2012 11:51 PM EDT 5 of 30

LEAD ATTORNEY

Joshua Gold (See above for address) LEAD ATTORNEY

Kenneth Rosenfeld (See above for address) LEAD ATTORNEY

Marc Cohan (See above for address) LEAD ATTORNEY

Randal S. Jeffrey (See above for address) LEAD ATTORNEY

Rebecca Lynn Scharf (See above for address) LEAD ATTORNEY

Scott Alan Rosenberg (See above for address) LEAD ATTORNEY

Yisroel Schulman (See above for address) LEAD ATTORNEY

Plaintiff
Adriana Calabrese on her own behalf and on behalf of all others similarly situated

represented by Adriene L. Holder (See above for address) LEAD ATTORNEY

Anne K. Callagy (See above for address) LEAD ATTORNEY

Christopher D. Lamb (See above for address) LEAD ATTORNEY

Constance P. Carden (See above for address) LEAD ATTORNEY

Esperanza Colon (See above for address) LEAD ATTORNEY

Hwan−Hui Helen Lee (See above for address) LEAD ATTORNEY

Joshua Gold (See above for address) LEAD ATTORNEY

Kenneth Rosenfeld (See above for address) LEAD ATTORNEY

Marc Cohan

Case: 1:98-cv-8877 As of: 09/16/2012 11:51 PM EDT 6 of 30

(See above for address) LEAD ATTORNEY

Randal S. Jeffrey (See above for address) LEAD ATTORNEY

Rebecca Lynn Scharf (See above for address) LEAD ATTORNEY

Scott Alan Rosenberg (See above for address) LEAD ATTORNEY

Yisroel Schulman (See above for address) LEAD ATTORNEY

Plaintiff
Jenny Cuevas on her own behalf and on behalf of all others similarly situated

represented by Adriene L. Holder (See above for address) LEAD ATTORNEY

Anne K. Callagy (See above for address) LEAD ATTORNEY

Christopher D. Lamb (See above for address) LEAD ATTORNEY

Constance P. Carden (See above for address) LEAD ATTORNEY

Esperanza Colon (See above for address) LEAD ATTORNEY

Hwan−Hui Helen Lee (See above for address) LEAD ATTORNEY

Joshua Gold (See above for address) LEAD ATTORNEY

Kenneth Rosenfeld (See above for address) LEAD ATTORNEY

Marc Cohan (See above for address) LEAD ATTORNEY

Randal S. Jeffrey (See above for address) LEAD ATTORNEY

Rebecca Lynn Scharf (See above for address) LEAD ATTORNEY

Case: 1:98-cv-8877 As of: 09/16/2012 11:51 PM EDT 7 of 30

Scott Alan Rosenberg (See above for address) LEAD ATTORNEY

Yisroel Schulman (See above for address) LEAD ATTORNEY

Plaintiff
Elston Richards on his own behalf and on behalf of all others similarly situated

represented by Adriene L. Holder (See above for address) LEAD ATTORNEY

Anne K. Callagy (See above for address) LEAD ATTORNEY

Christopher D. Lamb (See above for address) LEAD ATTORNEY

Constance P. Carden (See above for address) LEAD ATTORNEY

Esperanza Colon (See above for address) LEAD ATTORNEY

Hwan−Hui Helen Lee (See above for address) LEAD ATTORNEY

Joshua Gold (See above for address) LEAD ATTORNEY

Kenneth Rosenfeld (See above for address) LEAD ATTORNEY

Marc Cohan (See above for address) LEAD ATTORNEY

Randal S. Jeffrey (See above for address) LEAD ATTORNEY

Rebecca Lynn Scharf (See above for address) LEAD ATTORNEY

Scott Alan Rosenberg (See above for address) LEAD ATTORNEY

Yisroel Schulman (See above for address) LEAD ATTORNEY

V. Defendant

Case: 1:98-cv-8877 As of: 09/16/2012 11:51 PM EDT 8 of 30
Rudolph Giuliani as Mayor of the City of New York
Defendant
Jason Turner as Commissioner of the New York City Department of Social Services
Defendant
Brian J. Wing as Commissioner of the New York State Office of Temporary and Disability Assistance
Defendant
Barbara DeBuono as Commissioner of the New York State Department of Health

Date Filed 12/16/1998 12/16/1998 12/16/1998 12/16/1998
12/17/1998
12/18/1998
12/18/1998 12/21/1998
12/23/1998 12/28/1998

# Docket Text
1 COMPLAINT filed; Summons issued and Notice pursuant to 28 U.S.C. 636(c); (em) (Entered: 12/18/1998)
Magistrate Judge Buchwald is so Designated. (em) (Entered: 12/18/1998)
3 Order endorsed on declaration and support of request to proceed in forma pauperis; granted. ( signed by Judge Peter K. Leisure/Part I ) (kw) (Entered: 12/21/1998)
4 Notice of reassignment to Judge William H. Pauley III. Copy of notice mailed to Attorney(s) of record: Hwan−Hui Helen Lee, Kenneth Rosenfeld, Randal S. Jeffrey, Constance P. Carden, Yisroel Schulman, Rebecca L. Scharf, Marc Cohan, Adriene L. Holder, Esperanza Colon, Joshua E. Goldfein, Anne K. Callagy, Christopher D. Lamb and Scott A. Rosenberg and Joshua E. Goldfein . (em) (Entered: 12/21/1998)
2 ORDER TO SHOW CAUSE AND A TEMPORARY RESTRAINING ORDER by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards; Show Cause Hearing set for 9:30 12/30/98; pursuant to Rule 23 of the FRCP, to certify class action ; pursuant to Rule 65 of the FRCP, for a preliminary injunction against the defendants ( signed by Judge William H. Pauley III ); Copies mailed. (ae) (Entered: 12/18/1998)
Memorandum to Docket Clerk: OTSC before Judge Pauley − Judge's decision: provide the named pltffs expedited food stamps or emergency cash grants within 24 hrs.; next PTC set for 12/23/98 @10:00; Evidentiary Hearing set for 12/30/98 @9:30am. (lam) (Entered: 12/23/1998)
Pre−trial conference set at 10:00 12/23/98 (lam) (Entered: 12/23/1998)
Telephone conference held and concluded with Judge Pauley; Judge's Decision: city's opposition due 1/8/99, pltff's reply due 1/12/99; Evidentiary Hearing adjourned to 1/14/99 @9:00am. Submitted by Stan Pugliese. (lam) (Entered: 12/29/1998)
Memorandum to Docket Clerk: Hearing begun and concluded before Judge Pauley on 12/23/98; Order signed. Submitted by Stan Pugliese. (lam) (Entered: 12/29/1998)
5 ORDER, on consent of all parties that pending a hearing and determination of pltffs' application for preliminary injunctive relief, pltffs and the NYC defts shall implement an "informal intervention" procedure to address individual cases of exigent need for "expedited food stamps" and/or "emergency cash assistance" ( signed by Judge William H. Pauley III ); Copies mailed (lam) (Entered: 01/04/1999)

Case: 1:98-cv-8877 As of: 09/16/2012 11:51 PM EDT 9 of 30

01/06/1999 01/06/1999 01/07/1999
01/12/1999 01/13/1999 01/14/1999 01/15/1999 01/15/1999 01/19/1999
01/19/1999 01/20/1999 01/21/1999
01/21/1999 01/22/1999 01/22/1999
01/26/1999

7 NOTICE OF SUPPLEMENTAL MOTION SUPPLEMENTING: an order to show cause by intervener Posr A. Posr to audio−visually record, with a video camera the proceedings in this case ; Return date of 9:30 a.m. on 1/11/99. (kw) (Entered: 01/11/1999)
Telephone conference held and concluded with Judge Pauley; Evidentiary Hearing adjourned until 1/20/99 @9:00am. (lam) (Entered: 01/12/1999)
6 MEMORANDUM AND ORDER, on 12/21/98, this Court received an ex parte application from Mr. Posr A. Posr, executive director of an organization known as Pro Se Views, seeking permission to videotape and televise further courtroom proceedings in this civil action. For the reasons stated in this memorandum and order, the application is denied. ( signed by Judge William H. Pauley III); Copies mailed (djc) (Entered: 01/08/1999)
Telephone conference held and concluded before Judge Pauley. (kw) (Entered: 01/14/1999)
Telephone conference held and concluded before Judge Pauley. (kw) (Entered: 01/14/1999)
Telephone conference held before and concluded before Judge Pauley. (kw) (Entered: 01/15/1999)
Telephone conference held and concluded before Judge Pauley. (kw) (Entered: 01/20/1999)
Telephone conference held and concluded before Judge Pauley. (kw) (Entered: 01/20/1999)
8 ORDER, regarding the Court decision on the letter memoranda submitted by the City defendants and the plaintiffs dated 1/13/99, and 1/14/99. The production of documents required by this Order shall be made by delivering copies to plaintiffs' counsel at the offices of the Welfare Law Center, or such other location as the parties may designate in New York County, no later than 1/16/99 at 11:00 a.m. ( signed by Judge William H. Pauley III ); Copies mailed (kw) (Entered: 01/20/1999)
Telephone conference held and concluded before Judge Pauley. (kw) (Entered: 01/20/1999)
Motion hearing on preliminary injunction/TRO begun before Judge Pauley. (kw) (Entered: 02/01/1999)
9 MEMORANDUM AND ORDER, by letter memorandum dated 1/19/99, the City defendants move for an order in limine to preclude the introduction of a declaration by Adrienne L. Holder and to preclude the testimony of Sue Kelly and Mary A. Ferris. In view of the plaintiffs' stipulation, Ferris will not testify at the hearing. The City defendants motion in limine is denied ( signed by Judge William H. Pauley III ); Copies mailed (kw) (Entered: 01/25/1999)
Motion hearing before Judge Pauley continued. (kw) (Entered: 02/01/1999)
Motion hearing continued and concluded before Judge Pauley. (kw) (Entered: 02/01/1999)
33 NOTICE OF APPEAL by Posr A. Posr Executive Director of Pro−Se Views, A Court News Organization ; from ; permission to make a video−recording of the proceedings in the above entittled matter and denying Pro−Se Views to make a video recording of Pro−Se Views' application to video record preoceedings netered in this action on the 7th day of January, 1999. Copies of notice of appeal mailed to Attorney(s) of Record: Corporation Counsel and Attorney General for the State of New York . *(IFP GRANTED FEBRUARY 16, 1999)*. Appeal record due on 2/22/99. (dt) (Entered: 02/24/1999)
10 MEMORANDUM AND ORDER granting in part, denying in part [2−2] motion pursuant to Rule 65 of the FRCP, for a preliminary injunction against the defendants; the Court will hear oral argument on the sufficiency of the corrective plan as soon as practicable after the submissions have been filed. At that time, the

Case: 1:98-cv-8877 As of: 09/16/2012 11:51 PM EDT 10 of 30

01/26/1999 01/26/1999 01/26/1999 01/26/1999 01/26/1999 01/26/1999 01/26/1999 01/26/1999 01/26/1999 01/26/1999 01/26/1999 01/26/1999 01/26/1999 01/26/1999 01/26/1999 01/29/1999
01/29/1999
02/01/1999 02/01/1999 02/01/1999 02/10/1999
02/16/1999 02/16/1999 02/19/1999

Court will also entertain any requests to modify the preliminary injunction. Finally, the parties are directed to confer on the formulation of a pretrial discovery plan pursuant to FRCP 16 to be presented for approval to this Court on 2/18/99 ( signed by Judge William H. Pauley III ); Copies mailed (kw) (Entered: 01/27/1999)
11 DECLARATION of Jacquelyn Flaum. (kw) (Entered: 01/28/1999)
12 DECLARATION of William Stalzer. (kw) (Entered: 01/28/1999)
13 DECLARATION of Atler Williams−Kahn. (kw) (Entered: 01/28/1999)
14 DECLARATION of Jacqueline King. (kw) (Entered: 01/28/1999)
15 DECLARATION of Zebedee Daniels. (kw) (Entered: 01/28/1999)
16 DECLARATION of William Satter White. (kw) (Entered: 01/28/1999)
17 DECLARATION of Christopher Burch. (kw) (Entered: 01/28/1999)
18 DECLARATION of Robertino Cox. (kw) (Entered: 01/28/1999)
19 DECLARATION of Seth W. Diamond. (kw) (Entered: 01/28/1999)
20 Plaintiffs' Supplemental Deposition Designations. (kw) (Entered: 01/28/1999)
21 Transcript of record of the deposition of Rafael Heral on 1/20/99. (kw) (Entered: 01/28/1999)
22 Transcript of record of the deposition of Adrianne Fleming on 1/20/99. (kw) (Entered: 01/28/1999)
23 Transcript of record of the deposition of Gloria Lamboy on 1/20/99. (kw) (Entered: 01/28/1999)
24 Transcript of record of the deposition of Sylvia Gonzalez on 1/20/99. (kw) (Entered: 01/28/1999)
25 Transcript of record of the deposition of Edward Brown on 1/20/99. (kw) (Entered: 01/28/1999)
26 NOTICE OF CROSS MOTION by Brian J. Wing, and Barbara DeBuono for an order and judgment pursuant to FRCP Rule 12(b), dismissing plaintiffs' claims against the State defendants ; affidavit in support is attached. (kw) (Entered: 02/02/1999)
27 MEMORANDUM by Brian J. Wing, and Barbara DeBuono in support of [26−1] cross motion for an order and judgment pursuant to FRCP Rule 12(b), dismissing plaintiffs' claims against the State defendants. (kw) (Entered: 02/02/1999)
28 Transcript of record of proceedings before Judge Pauley on 12/16/98. (kw) (Entered: 02/08/1999)
29 Transcript of record of proceedings before Judge Pauley on 12/21/98. (kw) (Entered: 02/08/1999)
30 Transcript of record of proceedings before Judge Pauley on 12/23/98. (kw) (Entered: 02/08/1999)
37 Job Center Action Plan by the NYC Human Resources Administration in response to the memorandum and order dated 1/25/99 of Judge Pauley in connection to 98 civ. 8877. (kw) (Entered: 03/09/1999)
31 Order endorsed on declaration in support of request to proceed in forma pauperis, granted; (signed by Judge William H. Pauley III) (djc) (Entered: 02/16/1999)
Telephone conference held before Judge Pauley. Contested issue − yes. (kw) (Entered: 02/22/1999)
32 Plaintiffs' comments on the City defendants' corrective action plan. (kw) (Entered: 02/22/1999)

Case: 1:98-cv-8877 As of: 09/16/2012 11:51 PM EDT 11 of 30

02/24/1999 03/01/1999 03/01/1999 03/03/1999
03/09/1999 03/10/1999 03/11/1999 03/12/1999 03/16/1999
03/17/1999
03/17/1999
03/17/1999 03/19/1999 03/19/1999 03/22/1999
03/22/1999
03/22/1999

Notice of appeal and certified copy of docket to USCA: [33−1] appeal ; Copy of notice of appeal sent to District Judge. (dt) (Entered: 02/24/1999)
34 Notice that the record on appeal has been certified and transmitted to the U.S. Court of Appeals: [33−1] appeal. (dt) (Entered: 03/01/1999)
Indexed record on appeal files sent to the U.S.C.A. (dt) (Entered: 03/01/1999)
35 Filed Memo−Endorsement on letter from Marc Cohan, for pltffs dated 2/26/99, The City defts will serve and file their response to pltffs' comments by 3/10/99; pltffs will serve and file their reply to the City defts' response by 3/17/99 ( signed by Judge William H. Pauley III ) (lam) (Entered: 03/04/1999)
36 Transcript of record of proceedings filed for dates of 1/21/99 @9:45 before Judge Pauley. (lam) (Entered: 03/09/1999)
Telephone conference held and concluded before Judge Pauley. Contested issue − yes. (kw) (Entered: 03/17/1999)
Telephone conference held and concluded before Judge Pauley. Contested issue − yes. (kw) (Entered: 03/17/1999)
Telephone conference held and concluded before Judge Pauley. Contested issue − yes. (kw) (Entered: 03/17/1999)
38 Filed Memo−Endorsement on letter from Jonathan Pines, Asst Corp Counsel, atty for the City defts dated 3/10/99, granting request for an enlargement of time within which to file a response to pltffs' comments to the Job Center Action Plan; the City defts' response will be served by close of business on 3/15/99, and pltffs' response will be served by close of business on 3/22/99 ( signed by Judge William H. Pauley III ) (lam) (Entered: 03/16/1999)
39 Filed Memo−Endorsement on letter from Jonathan Pines, Asst Corp Counsel, atty for City defts dated 3/15/99, granting request for a 24 hrs. enlargement of time; the City defts' response will be served by close of business on 3/16/99, and pltffs' response will be served by close of business on 3/23/99 ( signed by Judge William H. Pauley III ) (lam) (Entered: 03/19/1999)
40 DECLARATION of Hannah Cohen, with the NYC Human Resources Administration, Office of Legal Affairs, in response to plaintiffs' comments on the City Defendants' Corrective Action Plan ("Comments"), and in support of City defendants' seeking a lifting of the stay of conversion of additional Centers pursuant to the Court's preliminary injunction. (kw) (Entered: 03/22/1999)
41 DECLARATION of Jonathan Pines in response to plaintiffs' comments and in support of City Defendants' Order to Show Cause for Modification of the Preliminary Injunction. (kw) (Entered: 03/22/1999)
Pre−trial conference held and concluded before Judge Pauley. Contested issue − yes. (kw) (Entered: 03/22/1999)
42 Affidavit of service of brief dated 3/17/99 upon Jonathan Pines, Asst Corp counsel by Hwan−Hui Helen Lee, The Legal Aid Society on 3/17/99. (lam) (Entered: 03/24/1999)
43 REPLY DECLARATION in support of Hwan−Hui Helen Lee, one of the attys for Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Cuevas, Elston Richards [2−1] motion pursuant to Rule 23 of the FRCP, to certify class action, [2−2] motion pursuant to Rule 65 of the FRCP, for a preliminary injunction against the defendants (lam) (Entered: 03/25/1999)
44 REPLY MEMORANDUM by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards re: in support of [2−1] motion pursuant to Rule 23 of the FRCP, to certify class action, [2−2] motion pursuant to 65 of the FRCP, for a preliminary injunction against the defendants (lam) (Entered: 03/25/1999)
45 Filed Memo−Endorsement on letter to Judge Pauley from Hwan−Hui Helen Lee dated 3/18/99, counsel requests an extension of time to file their response to the

Case: 1:98-cv-8877 As of: 09/16/2012 11:51 PM EDT 12 of 30

03/24/1999 03/25/1999 03/26/1999 03/29/1999 03/29/1999 03/31/1999
03/31/1999 03/31/1999
04/08/1999 04/08/1999 04/19/1999 04/20/1999 04/23/1999

City defendants' response to plaintiffs' comments to the City defendants' corrective action plan, from 3/23/99 to 3/29/99. Application granted ( signed by Judge William H. Pauley III ) (kw) (Entered: 03/25/1999)
Telephone conference held and concluded before Judge Pauley. Contested issue − yes. (kw) (Entered: 03/29/1999)
46 Transcript of record of proceedings before Judge Pauley filed on 1/20/99. (kw) (Entered: 03/30/1999)
47 SUPPLEMENTAL DECLARATION of Jonathan Pines. (kw) (Entered: 03/30/1999)
48 REPLY by plaintiffs' to City Defendants' response to plaintiffs' comments on City Defendants' corrective action plan. (kw) (Entered: 03/31/1999)
49 Reply DECLARATION of Hwan−Hui Helen Lee, one of the attorneys for the plaintiffs, in opposition to the City defendants' application. (kw) (Entered: 03/31/1999)
50 STIPULATION and ORDER; that pending the vacating or modification of the 1/25/99 stay against converting Income Support Centers to Job Centers, City defts shall provide this Court and counsel for the pltffs and for the State defts with written notice 30 days in advance of (a) closing an Income Support Center; (b) reducing the number of zip codes served by an Income Support Center; or (c) transferring responsibility for any zip codes from an Income Support Center to a Job Center, where any of the above would result in the directing of applicants from an Income Support Center to a Job Center; effective as of the signing of this Stipulation and Order and until such time as this Court vacates or modifies the 1/25/99 stay against converting Income Support Centers to Job Centers, the city defts shall cease referring applicants for public assistance, food stamps, and medicaid who would, prior to 3/1/99, have gone to the East End Income Support Center and will instead process their applications at the East End Income Support Center. In addition, City defts shall issue a memorandum revoking Center Director Memo CD−99−9, dated 2/16/99, in so far as it pertains to new applicants ( signed by Judge William H. Pauley III ). (jp) (Entered: 04/02/1999)
51 ORDER, that pltff's application to inspect the City defts' Job Centers purs to FRCP 34 is granted as set forth in this Order ( signed by Judge William H. Pauley III ); Copies mailed (lam) (Entered: 04/05/1999)
52 SCHEDULING ORDER: First sets of interrogatories and notices to produce documents to be served by 4/1/99; Depositions will commence no later than 5/1/99; All fact Discovery cutoff 9/30/99; Requests for admissions will be served by 10/29/99, and responses will be served by 11/22/99; The parties will serve their respective expert reports by 10/29/99; All expert discovery, including expert depositons, will be completed by 12/3/99; Joint Pretrial order to be submitted on or before 1/15/99; A Final Pretrial conference for 9:30 1/7/00 ( signed by Judge William H. Pauley III ); Copies mailed by Chambers. (lam) (Entered: 04/05/1999)
53 Filed Memo−Endorsement on letter to Judge Pauley from Jonathan Pines, dated 4/2/99, granting City defts' request for the Court to schedule argument on the sufficiency of City defts' Job Cetner Action Plan; Oral argument on the sufficiency of the City defts'Job Center Action Plan is scheduled for 4/20/99 at 4:00 p.m. ( signed by Judge William H. Pauley III ) (cd) (Entered: 04/08/1999)
Telephone conference held and concluded before Judge Pauley. Contested issue − yes. (kw) (Entered: 04/13/1999)
Telephone conference held and concluded before Judge Pauley. Contested issue − yes. (kw) (Entered: 04/22/1999)
Telephone conference held and concluded before Judge Pauley. Contested issue − yes. (kw) (Entered: 04/22/1999)
54 Transcript of record of proceeding before Judge Pauley 2/16/99. (kw) (Entered: 04/23/1999)

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04/23/1999 04/27/1999 04/29/1999
04/29/1999 04/30/1999 05/03/1999 05/03/1999 05/05/1999 05/05/1999
05/05/1999
05/05/1999
05/06/1999 05/24/1999
06/03/1999 06/08/1999 06/08/1999 06/08/1999 06/11/1999

Telephone conference held and concluded before Judge Pauley. Contested issue − yes. (kw) (Entered: 04/29/1999)
55 SUPPLEMENTAL DECLARATION of Patricia M. Smith. (kw) (Entered: 05/04/1999)
56 DECLARATION in opposition of Hwan−Hui Helen Lee, an atty for Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Cuevas, Elston Richards re: City defts' application for approval of the CAP and for modification of the Preliminary Injunction. (lam) (Entered: 05/04/1999)
57 Deposition Designations filed by pltffs. (lam) (Entered: 05/04/1999)
58 MEMORANDUM by Lakisha Reynolds in support of plaintiffs' motion for class certification. (kw) (Entered: 05/06/1999)
63 Deposition Designation from the deposition of Sheila Butler on 4/16/99. (lam) (Entered: 05/10/1999)
64 DECLARATION of Ismaila Toure re: injury caused by his car being hit by an ambulance. (lam) (Entered: 05/10/1999)
59 SUPPLEMENTAL DECLARATION of Jonathan Pines in response to Re: [57−1] to the materials submit by plaintiffs on 4/29/99. (kw) (Entered: 05/07/1999)
60 Filed Memo−Endorsement on letter from Marc Cohan, atty dated 4/29/99, approving the following briefing schedule for the motion for class certification: pltffs' will serve their Memorandum of Law in Support of Class Certification on the defts by 4/30/99; defts are permitted 30 days to submit their opposition papers; pltffs' reply briefing is due 15 days later; pltffs will serve copies of this endorsed letter on all counsel of recored ( signed by Judge William H. Pauley III ) (lam) (Entered: 05/07/1999)
61 Filed Memo−Endorsement on letter from James M. Hershler, Asst Atty General dated 4/27/99, granting joint request for a 2 wk extension of time to respond to the interrogatories and document requests served by pltffs on 4/1/99 ; the City defts will serve copies of this endorsed letter on all counsel of record ( signed by Judge William H. Pauley III ) (lam) (Entered: 05/07/1999)
62 Filed Memo−Endorsement on letter to Judge Pauley from Hwan−Hui Helen Lee dated 5/3/99, counsel, for plaintiffs, requests an order from the Court requiring the City defendants to provide plaintiffs with the data described in plaintiffs' 4/30/99 letter to the Court by the close of business today and permitting plaintiffs until the close of business on 5/5/99 to submit their analysis of the data to the Court. Plaintiffs may submit their analysis of the data concerning income support centers by 5/5/99 at 5:00 p.m. ( signed by Judge William H. Pauley III ) (kw) (Entered: 05/10/1999)
65 Plaintiffs' reply declaration. (kw) (Entered: 05/11/1999)
66 MEMORANDUM AND ORDER, the "City defendants" motion to modify a preliminary injunction entered by this Court on 1/25/99 is granted in part and denied in part ; set pre−trial conference for 3:00 p.m. on 6/3/99 ( signed by Judge William H. Pauley III ); Copies mailed (kw) (Entered: 05/26/1999)
Pretrial Conference held and concluded before Judge William H. Pauley III. Contested issue − yes. (kw) (Entered: 06/15/1999)
67 Transcript of record of proceedings filed for dates of 3/24/99 @4:15pm before Judge Pauley. (lam) (Entered: 06/08/1999)
68 Transcript of record of proceedings filed for dates of 4/8/99 @5:49pm before Judge Pauley. (lam) (Entered: 06/08/1999)
69 Transcript of record of proceedings filed for dates of 4/29/99 @4:20pm before Judge Pauley. (lam) (Entered: 06/08/1999)
70 SCHEDULING ORDER: the City defendants will serve and file their expert report by 6/21/99; plaintiffs will serve and file their expert report by 7/2/99; the parties will serve and file their respective witness lists by 7/2/99; an evidentiary hearing is

Case: 1:98-cv-8877 As of: 09/16/2012 11:51 PM EDT 14 of 30

06/11/1999 06/15/1999
06/22/1999 06/24/1999 07/08/1999 07/09/1999 07/09/1999 07/14/1999
07/20/1999
07/26/1999 07/28/1999 07/28/1999 07/29/1999
07/29/1999

scheduled for 7/14/99 at 9:30 a.m. ( signed by Judge William H. Pauley III ); Copies mailed (kw) (Entered: 06/15/1999)
Telephone Conference held before Judge William H. Pauley III (lam) (Entered: 06/15/1999)
71 Filed Memo−Endorsement on letter addressed to Judge Pauley, dated 6/9/99, from Jonathan Pines, Asst Corp. Counsel; requesting that City defts be permitted to serve their opposition to pltffs' motion for class certification on 7/21/99, with pltffs' reply papers due on 8/12/99; the revised briefing schedule is approved ( signed by Judge William H. Pauley III ); Copies mailed. (lam) (Entered: 06/17/1999)
72 Report of City Defendants' expert Dr. June E. O'Neill. (kw) (Entered: 06/24/1999)
Telephone Conference held and concluded before Judge William H. Pauley III. Contested issue − yes. (kw) (Entered: 06/28/1999)
Pretrial Conference held before Judge William H. Pauley III (lam) (Entered: 07/14/1999)
73 Transcript of record of proceedings filed for dates of 4/8/99 @5:49pm before Judge Pauley. (lam) (Entered: 07/09/1999)
74 Transcript of record of proceedings filed for dates of 3/19/99 @11:05am before Judge Pauley. (lam) (Entered: 07/09/1999)
75 SCHEDULING ORDER: that the City defts' motion to preclude pltffs from offering the testimony of the 11 fact witnesses identified on pltffs' witness list is denied; however, pltff will offer the direct testimony of any such witnesses through declarations to be served by 5:00pm on 7/12/99; the City defts' motion to strike the declaration of Randall S. Jeffrey, dated 7/2/99, is denied; the hearing scheduled for 7/14/99 is adjourned to 7/26/99 @2;00pm ( signed by Judge William H. Pauley III ); Copies mailed (lam) (Entered: 07/15/1999)
76 Filed Memo−Endorsement on letter addressed to Judge Pauley from Jonathan Pines, dated 7/14/99, counsel, for City defendants, requests a telephone conference with the Court for the purpose of re−visiting City defendants' application to preclude the declaration of Randall S. Jefffrey, dated 7/2/99. The City defendants' application is denied, except with respect to those figures and calculations set forth in the Jeffrey declaration which are not accompanied by an evidentiary citation and, where relevant, an explanation of the methodology behind the calculation, the City defendants may serve narrowly tailored interrogatories seking that clarigying information. Any such interrogatories will be served and filed by 5:00 p.m. on 7/19/99. Response will be served and filed by 5:00 p.m. on 7/22/99 ( signed by Judge William H. Pauley III ); Copies mailed. (kw) Modified on 07/23/1999 (Entered: 07/21/1999)
Telephone Conference held before Judge William H. Pauley III. (lam) (Entered: 08/03/1999)
78 DECLARATION of Randal S. Jeffrey on behalf of plaintiffs in opposition to the City defendants' motion to further modify this Court's preliminary injunction. (kw) (Entered: 07/30/1999)
79 RESPONSE by plaintiffs to City defendants' first interrogatories to plaintiffs. (kw) (Entered: 07/30/1999)
77 Filed Memo−Endorsement on letter addressed to Judge Pauley from Jonathan Pines, Asst Corp. Counsel, atty for City defts, dated 7/21/99; granting request for a revision in the briefing schedule for pltffs' motion for class certification, requesting that City defts be permitted to serve their opposition to the motion 8/4/99, with pltffs' reply papers due on 8/26/99 ( signed by Judge William H. Pauley III ); Copies mailed. (lam) (Entered: 07/30/1999)
80 ORDER, the City defendants' application to modify the preliminary injunction entered by this Court on 1/25/99 is denied without prejudice to its renewal upon further application to the Court ( signed by Judge William H. Pauley III ); Copies mailed. (kw) (Entered: 08/02/1999)

Case: 1:98-cv-8877 As of: 09/16/2012 11:51 PM EDT 15 of 30

08/04/1999 08/10/1999 08/30/1999 09/08/1999 09/14/1999 10/21/1999 10/28/1999
10/28/1999
11/08/1999 11/08/1999 11/08/1999 11/08/1999 11/09/1999 11/12/1999 11/24/1999
11/24/1999 12/01/1999 12/01/1999

81 SEALED DOCUMENT placed in vault (da) (Entered: 08/04/1999)
82 Transcript of record of proceedings before Judge Pauley on 6/3/99. (kw) (Entered: 08/10/1999)
83 REPLY MEMORANDUM by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, and Elston Richards in support of plaintiffs' motion for class certification. (kw) (Entered: 08/31/1999)
84 Transcript of record of proceedings before Judge Pauley on 7/26/99. (kw) (Entered: 09/09/1999)
85 ORDER, set status conference for 9:00 a.m. on 9/15/99 ( signed by Judge William H. Pauley III ); Copies mailed. (kw) (Entered: 09/15/1999)
Pretrial Conference held before Judge William H. Pauley III. Contested issue yes. (kw) (Entered: 10/26/1999)
86 ORDER, pltffs will serve and file their expert report by 12/6/99 ; the City defts will conduct the deposition of pltffs' expert on 12/8 and 9, 1999 ; the parties will submit their respective proposed findings of fact and conclusions of law, and a joint pre−hearing order identifying exhibits, by the close of business on 12/10/99 ; an evidentiary hearing is scheduled for 12/15/99 @9:00am ( signed by Judge William H. Pauley III ) Copies mailed. (lam) (Entered: 11/01/1999)
86 ORDER, pltffs will serve and file their expert report by 12/6/99 ; the City defts will conduct the deposition of pltffs' expert on 12/8 and 9, 1999 ; the parties will submit their respective proposed findings of fact and conclusions of law, and a joint pre−hearing order identifying exhibits, by the close of business on 12/10/99 ; set evidentiary hearing for 9:00 12/15/99 (signed by Judge William H. Pauley III ); Copies mailed. (lam) (Entered: 11/05/1999)
87 Transcript of record of proceeding before Judge William H. Pauley III on 4/20/99. (kw) (Entered: 11/08/1999)
88 Transcript of record of proceedings before Judge William H. Pauley III for the date(s) of 4/22/99 @9:00am. (lam) (Entered: 11/08/1999)
89 Transcript of record of proceedings before Judge William H. Pauley III for the date(s) of 9/22/99 @9:15am. (lam) (Entered: 11/08/1999)
90 MANDATE OF USCA (certified copy) Re: [33−1] appeal. The order of the Dist. Court is affirmed. (emil) (Entered: 11/09/1999)
91 NOTICE OF MOTION by Rudolph Giuliani, Jason Turner; for an order pursuant to Local Rule 1.3(c) for Tracey H. Cohen to appear pro hac vice ; w/ attch. certif. in support; Return date: not indicated (pl) (Entered: 11/12/1999)
92 NOTICE OF MOTION by Rudolph Giuliani, Jason Turner for Coleen Friel to appear pro hac vice for Giuliani, and Turner . With Certificate attached. Return date not indicated. (lam) Modified on 12/03/1999 (Entered: 11/16/1999)
93 ORDER, granting [91−1] motion for an order pursuant to Local Rule 1.3(c) for Tracey H. Cohen to appear pro hac vice. ( signed by Judge William H. Pauley III ); Copies mailed. (Sent document to Attorney Admission Clerk) (kw) (Entered: 12/01/1999)
94 ORDER, granting [92−1] motion for Coleen Friel to appear pro hac vice for Giuliani, and Turner. ( signed by Judge William H. Pauley III ); Copies mailed. (Sent document to Attorney Admission Clerk) (kw) (Entered: 12/01/1999)
95 STIPULATION and PROTECTIVE ORDER, governing the handling of confidential information ( signed by Judge William H. Pauley III ) (lam) (Entered: 12/03/1999)
96 STIPULATION and PROTECTIVE ORDER, governing the handling of confidential information ( signed by Judge William H. Pauley III ) (lam) (Entered: 12/03/1999)

Case: 1:98-cv-8877 As of: 09/16/2012 11:51 PM EDT 16 of 30

12/01/1999 12/02/1999 12/07/1999
12/10/1999 12/10/1999 12/10/1999
12/10/1999 12/13/1999 12/14/1999 12/16/1999 12/17/1999 01/10/2000 01/10/2000 01/18/2000 01/25/2000
01/31/2000
02/04/2000 02/04/2000 02/04/2000

97 ORDER, for Charles A. Miller to appear pro hac vice for City defts' Guiliani and Turner ( signed by Judge William H. Pauley III ); Copies mailed. (orig doc. sent to the atty admissions clerk) (lam) Modified on 12/08/1999 (Entered: 12/06/1999)
98 Transcript of record of proceedings before Judge William H. Pauley III for the date(s) of 10/21/99 @3:30pm. (lam) (Entered: 12/06/1999)
99 NOTICE OF MOTION by Rudolph Giuliani, Jason Turner for Charles A. Miller to appear pro hac vice for Giuliani and Turner . With Certification and Certificate attached. Return date not indicated. (lam) Modified on 12/10/1999 (Entered: 12/10/1999)
Remark by the Cashier's Office on a one page docketed sheet that on 12/10/99 $25.00 was paid. (kw) (Entered: 12/13/1999)
100 FINDINGS OF FACT AND CONCLUSIONS OF LAW by City Defendants. (kw) (Entered: 12/13/1999)
101 NOTICE OF MOTION by Rudolph Giuliani, Jason Turner, Brian J. Wing, and Barbara DeBuono for an order vacating the Court's preliminary injunction of 1/22/99 ; declaration of Abdullah, Bush, Dworkin, Elbaz, Flaum, O'Neill and Smith in suppport are attached. (kw) Modified on 12/13/1999 (Entered: 12/13/1999)
102 MEMORANDUM OF LAW by Rudolph Giuliani, Jason Turner, Brian J. Wing, and Barbara DeBuono in support of [101−1] motion for an order vacating the Court's preliminary injunction of 1/22/99. (kw) (Entered: 12/13/1999)
Telephone Conference held before Judge William H. Pauley III. (lam) (Entered: 12/13/1999)
Telephone Conference held before Judge William H. Pauley III (lam) (Entered: 12/22/1999)
Remark by Cashiers Office on doc. #94, Order of Pro Hac Vice; on 12/16/99 the following transaction was made: 362033, Ca $25. (lam) (Entered: 12/21/1999)
103 Remark by Cashiers Office on copy of order for pro hac vice (doc. #93); on 12/17/99 the following transaction was made: 362097 CA $25. (lam) (Entered: 12/21/1999)
104 Supplemental DECLARATION of Patrica M. Smith. (kw) Modified on 01/18/2000 (Entered: 01/18/2000)
105 Second Supplemental DECLARATION of June O'Neill. (kw) (Entered: 01/18/2000)
Telephone Conference held before Judge William H. Pauley III. (lam) (Entered: 02/01/2000)
106 STIPULATION and ORDER, the parties consent to the filing of all the volumes of exhibits to the pltffs' 12/10/99 submissions under seal because they contain the names and other confidential information of welfare applicants at the job centers and the income support centers ( signed by Judge William H. Pauley III ) (lam) (Entered: 01/27/2000)
107 Memo to Civil Docket clerk: a hearing began on 12/15/99 and concluded on the following date: 1/19/00; the submission of simultaneous proposed findings and conclusions are due 2/4/00, simultaneous responsive briefs are due 2/11/00, oral argument set for 2/16/00 @5:00. (lam) (Entered: 02/01/2000)
108 Transcript of record of proceedings before Judge William H. Pauley III for the date(s) of 12/14/99 @3:05pm. (lam) (Entered: 02/04/2000)
109 Transcript of record of proceeding before Judge William H. Pauley III on 12/15/99. (kw) (Entered: 02/07/2000)
110 Post−hearing MEMORANDUM OF LAW by Rudolph Giuliani, Jason Turner, Brian J. Wing, and Barbara DeBuono in support of [101−1] motion for an order vacating the Court's preliminary injunction of 1/22/99. (kw) (Entered: 02/08/2000)

Case: 1:98-cv-8877 As of: 09/16/2012 11:51 PM EDT 17 of 30

02/04/2000 02/11/2000 02/28/2000 02/28/2000 02/28/2000 02/28/2000 03/02/2000 03/10/2000 04/06/2000 04/06/2000 05/18/2000 05/24/2000
06/12/2000
06/23/2000 06/23/2000 07/07/2000 07/21/2000
08/03/2000

111 City defendants' proposed FINDINGS OF FACT AND CONCLUSIONS OF LAW. (Submitted Post−hearing) (kw) (Entered: 02/08/2000)
112 RESPONSE by Rudolph Giuliani, Jason Turner, Brian J. Wing, and Barbara DeBuono to plaintiffs' opposition to motion to vacate the preliminary injunction. (kw) (Entered: 02/15/2000)
114 Supplemental Deposition Designations by plaintiffs. (kw) (Entered: 03/03/2000)
116 MEMORANDUM OF LAW by plaintiffs and the plaintiff class in opposition to [101−1] motion for an order vacating the Court's injunction of 1/22/99. (kw) (Entered: 03/03/2000)
117 REPLY MEMORANDUM by plaintiffs and the plaintiff class in opposition to re: [101−1] motion for an order vacating the Court's preliminary injunction of 1/22/99. (kw) (Entered: 03/03/2000)
115 Plaintiffs' revised proposed findings of fact and conclusions of law. (kw) (Entered: 03/08/2000)
113 Transcript of record of proceedings before Judge William H. Pauley III for the date(s) of 1/19/00 @9:00am. (lam) (Entered: 03/02/2000)
Record on appeal files returned from U.S. Court of Appeals: [33−1] appeal. (dt) (Entered: 03/10/2000)
118 SEALED DOCUMENT placed in vault. (da) (Entered: 04/06/2000)
119 Transcript of record of proceedings before Judge William H. Pauley III for the date(s) of 2/16/00 @5:23pm. (lam) (Entered: 04/06/2000)
Telephone Conference held before Judge William H. Pauley III. (lam) (Entered: 05/24/2000)
120 ORDER, by 6/1/00, plaintiffs will serve and file a supplemental memorandum of points and authorities in opposition to Point II, III and IV of the State defendants' memorandum of law dated 1/18/99 and also as set forth in this document. The State defendants will serve and file a supplemental memorandum of points and authorites regarding the foregoing issues by 6/12/00. Plaintiffs may serve and file an additional memorandum in response to the State defendants' arguments by 6/14/00. Plaintiffs are directed to serve a copy of this scheduling order on all counsel by telecopier ; ( signed by Judge William H. Pauley III ); copies mailed. (kw) (Entered: 05/25/2000)
121 Supplemental MEMORANDUM OF LAW by Rudolph Giuliani, Jason Turner, Brian J. Wing, and Barbara DeBuono in support of their motion to dismiss. (Received in the night deposit box on 6/12/00 at 5:51 p.m.) (kw) (Entered: 06/15/2000)
122 DECLARATION of Rebecca L. Scharf by plaintiffs in opposition to State defendants' motion to dismiss the complaint. (kw) (Entered: 06/27/2000)
123 SUPPLEMENTAL MEMORANDUM OF LAW by Lakisha Reynolds in opposition to State defendants' motion to dismiss the complaint. (kw) (Entered: 06/27/2000)
124 Transcript of record of proceedings before Judge William H. Pauley III on 1/19/00. (kw) (Entered: 07/07/2000)
125 MEMORANDUM &ORDER, denying the City defts' [101−1] motion for an order vacating the Court's preliminary injunction of 1/22/99; denying the State defts' [26−1] cross motion for an order and judgment pursuant to FRCP 12(b), dismissing plaintiffs' claims against the State defendants; granting pltffs' motion for class certification ; setting status conference with all counsel for 3:45 8/4/00 ( signed by Judge William H. Pauley III ); Copies mailed. (lam) (Entered: 07/21/2000)
126 NOTICE OF MOTION by Rudolph Giuliani, Jason Turner, Brian J. Wing, Barbara DeBuono for reconsideration/reargument of [125−1] order granting pltffs' motion for class certification ; Return date 8/30/00 (cd) (Entered: 08/04/2000)

Case: 1:98-cv-8877 As of: 09/16/2012 11:51 PM EDT 18 of 30

08/03/2000 08/04/2000 08/04/2000 08/04/2000 08/30/2000
09/05/2000
09/07/2000 09/07/2000 10/06/2000 10/13/2000
11/09/2000 11/09/2000

127 MEMORANDUM OF LAW by Rudolph Giuliani, Jason Turner, Brian J. Wing, Barbara DeBuono in support of [126−1] motion for reconsideration/reargument of [125−1] order granting pltffs' motion for class certification . (cd) (Entered: 08/04/2000)
128 Memo−Endorsement on letter addressed to Judge Pauley from Tracey H. Cohen, dated 8/2/00; reset status conference for 12:00 8/24/00 ( signed by Judge William Pauley III ); Copies mailed. (lam) (Entered: 08/07/2000)
129 NOTICE OF MOTION by City defts to alter or amend the judgment denying City defts motion to vacate the preliminary injunction in its entirety purs to FRCP 59(e) ; modifying the injunction by eliminating decretal paragraph 6 . Return date 9/22/00 @10:00am. (lam) (Entered: 08/08/2000)
130 MEMORANDUM OF LAW by City defts in support of [129−1] motion to alter or amend the judgment denying City defts motion to vacate the preliminary injunction in its entirety purs to FRCP 59(e), [129−2] motion modifying the injunction by eliminating decretal paragraph 6 . (lam) (Entered: 08/08/2000)
131 MEMORANDUM OF LAW by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards in opposition to [129−1] motion to alter or amend the judgment denying City defts motion to vacate the preliminary injunction in its entirety purs to FRCP 59(e); [129−2] motion modifying the injunction by eliminating decretal paragraph 6; [126−1] motion for reconsideration/reargument of [125−1] order granting pltffs' motion for class certification. (sn) (Entered: 08/31/2000)
132 Memo−Endorsement on letter addressed to Judge Pauley from James M. Hershler, dated 8/22/00, Plntfs' Response to motion reset to 8/30/00 for [126−1] motion for reconsideration/reargument of [125−1] order granting motion for class certification ; Defts' Reply to Response to Motion reset to 9/7/00 for [126−1] motion for reconsideration/reargument of [125−1] order granting motion for class certification ; Return date reset to 9/8/00 for [126−1] motion for reconsideration/reargument of [125−1] order granting pltffs' motion for class certification ( signed by Judge William H. Pauley III ); Copies mailed. (cd) (Entered: 09/07/2000)
133 REPLY MEMORANDUM by City Defts in support re: [129−1] motion to alter or amend the judgment denying City defts motion to vacate the preliminary injunction in its entirety purs to FRCP 59(e); [129−2] motion modifying the injunction by eliminating decretal paragraph 6 (lf) (Entered: 09/08/2000)
134 REPLY MEMORANDUM by Brian J. Wing in support re: State Defts' motion for reargument (lf) (Entered: 09/08/2000)
Oral argument begun and concluded before Judge William H. Pauley III. Contested issue − yes. (kw) (Entered: 10/19/2000)
135 ORDER denying [129−1] motion to alter or amend the judgment denying City defts motion to vacate the preliminary injunction in its entirety purs to FRCP 59(e), denying [129−2] motion modifying the injunction by eliminating decretal paragraph 6, denying [126−1] motion for reconsideration/reargument of [125−1] order granting pltffs' motion for class certification; by 11/6/00, plntfs will serve and file any memo addressing the impact of the City defts' job search initiative for family assistance applicants referenced in City defts' 10/4/00 letter to the Court ; reset pre−trial conference for 10:00 11/17/00. The parties may submit letter memo raising any pretrial issues by 11/13/00. Opposition letters may be submitted by 11/15/00 ; trial is scheduled for 2/12/01 at 9:30 am ( signed by Judge William H. Pauley III ); Copies mailed. (cd) Modified on 10/16/2000 (Entered: 10/13/2000)
136 NOTICE OF APPEAL by Rudolph Giuliani, Jason Turner ; from [135−1] order by 11/6/00, plntfs will serve and file any memo addressing the impact of the City defts' job search initiative for family assistance applicants referenced in City defts' 10/4/00 letter to the Court . Copies of notice of appeal mailed to Attorney(s) of Record: Marc Cohan, Esq. and James Hershler. $105.00 Appeal filing fee paid 11/9/00 on receipt # E 389879. (dt) (Entered: 11/13/2000)
137 Memo−Endorsement on letter addressed to Judge Pauley from Caroline M. Brown, atty for City defts, dated 11/6/00; City defts are directed to submit a letter to the

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11/13/2000 11/17/2000 11/22/2000
11/29/2000
12/05/2000 12/15/2000 12/27/2000 01/04/2001 01/12/2001 01/22/2001 01/22/2001 01/25/2001 01/31/2001
02/01/2001 02/01/2001

Court on notice to counsel by 11/13/00 stating when they will be able to respond to pltffs' questions ( signed by Judge William H. Pauley III ); Copies mailed. (lam) (Entered: 11/14/2000)
Notice of appeal and certified copy of docket to USCA: [136−1] appeal by Jason Turner, Rudolph Giuliani ; Copy of notice of appeal sent to District Judge. (dt) (Entered: 11/13/2000)
Pretrial Conference held and concluded before Judge William H. Pauley III. Contested issue − yes. (kw) (Entered: 11/28/2000)
138 ORDER, the parties will file a proposed audit instrument by 11/22/00; the City defts will respond to the pltffs' questions regarding the zip code transfer plan by 11/22/00; pltffs will submit any opposition to the plan in the form of letter memorandum by 12/15/00 ; set pre−trial conference for 9:00 11/29/00 ( signed by Judge William H. Pauley III ); Copies mailed by Chambers. (lam) (Entered: 11/27/2000)
139 Memo−Endorsement on letter addressed to Judge Pauley from Marc Cohan, dated 11/22/00; granting the parties' request for an extension of time to submit the proposed audit instrument. The parties will submit a joint proposed audit instrument by 11/28/00 at 5:00 PM . ( signed by Judge William H. Pauley III ); Copies mailed. (sn) (Entered: 11/30/2000)
140 Transcript of record of proceedings before Judge William H. Pauley III on 10/6/00. (kw) (Entered: 12/05/2000)
Telephone Conference held before Judge William H. Pauley III. (kw) (Entered: 12/18/2000)
141 Transcript of record of proceedings before Judge William H. Pauley III for the date(s) of 11/17/00 @10:20am. (lam) (Entered: 12/27/2000)
142 NOTICE OF MOTION by Rudolph Giuliani, Jason Turner for Emily Johnson Henn to appear pro hac vice for defts Giuliani and Turner . With Certficate attached. Return date not indicated. (lam) (Entered: 01/09/2001)
Telephone Conference held before Judge William H. Pauley III. (kw) (Entered: 02/07/2001)
USCA Case Number Re: [136−1] appeal by Jason Turner, Rudolph Giuliani USCA NUMBER: 00−9460. (dt) (Entered: 01/22/2001)
Telephone Conference held before Judge William H. Pauley III. (lam) (Entered: 02/06/2001)
143 NOTICE OF MOTION by Rudolph Giuliani, Jason Turner for Donald J. Ridings, Jr. to appear pro hac vice . With Certifications attached. Return date not indicated. (lam) (Entered: 01/29/2001)
146 ORDER, the parties will submit supplemental witness lists by 1/26/01, and will advise of any revisions to the lists by 2/2/01; the parties will submit declarations of their fact witnesses by 2/2/01 ; the parties will conduct depositions of fact witnesses by 2/16/01 ; the City defts' expert report by Jessica Pollner and the pltffs' expert report by Richard Faust will be served by 2/9/01 ; the parties will make Jessica Pollner and Richard Faust available for depositions by 2/16/01 ; motions in limine due by 2/21/01; Opposition to motions in limine due by 2/23/01 ; the parties will file and serve their respective findings of fact and conclusions of law, and premark and exchange their exhibits by the close of business on 2/22/01 ; set bench trial for 9:15 2/26/01 ( signed by Judge William H. Pauley III ); Copies mailed. (lam) (Entered: 02/02/2001)
144 Transcript of record of proceedings before Judge William H. Pauley III for the date(s) of 12/1/00 @9:00am. (lam) (Entered: 02/01/2001)
145 Transcript of record of proceedings before Judge William H. Pauley III on 12/15/00. (kw) (Entered: 02/01/2001)

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02/02/2001 02/05/2001 02/08/2001 02/16/2001
02/16/2001 02/22/2001 02/22/2001
02/26/2001
03/02/2001 03/02/2001 03/08/2001 03/09/2001 03/22/2001 03/26/2001 03/26/2001 03/29/2001

Telephone Conference held before Judge William H. Pauley III. (kw) (Entered: 02/07/2001)
147 ORDER; granting [143−1] motion for Donald J. Ridings, Jr. to appear pro hac vice . ( signed by Judge William H. Pauley III ); Copies mailed. Forwarded orig. doc. to Admissions Clerk. (pl) Modified on 02/08/2001 (Entered: 02/07/2001)
148 Letter filed by Lakisha Reynolds addressed to Judge Pauley from Marc Cohan, dated 2/8/01, re: informing the Court that they believe, on the basis of evidence adduced during discovery, that the scope of the issues to be tried in this case may be narrowed and simplified in certain respects. (kw) (Entered: 02/09/2001)
149 ORDER MODIFYING PRELIMINARY INJUNCTION; so much of decretal paragraph 6 of this Court's order of January 25, 1999, as preliminarily enjoins City defendants from converting any Income Support Center to a Job Center or opening any new Job Centers, is Vacated; and this Court's order entered March 23, 1999, prohibiting transfer of responsibility for certain zip codes from Income Support Center to Job Centers, is vacated ; ( signed by Judge William H. Pauley III ); Copies mailed. (djc) (Entered: 02/16/2001)
Telephone Conference held before Judge William H. Pauley III. (kw) (Entered: 03/29/2001)
150 STIPULATION and PROTECTIVE ORDER; regarding procedures that will govern the handling of confidential material ; ( signed by Judge William H. Pauley III ) (lf) (Entered: 02/23/2001)
151 SCHEDULING ORDER: that unless the parties have agreed on three proposed mediators for this Court's consideration, the plaintiffs, the City defendants, and the State Defendants will each submit to the Court the name and curriculum vitae of a proposed mediator by 2/23/01; the City dfts will submit the expert reports and declarations to of William Waldman and Kathryn Way to the plaintiffs by 3/9/01; trial will commence on 4/2/01 at 9:15 a.m.. ( signed by Judge William H. Pauley III ); Copies mailed. (pl) Modified on 02/26/2001 (Entered: 02/23/2001)
152 Memo−Endorsement on letter addressed to Judge Pauley from Caroline M. Brown, dated 2/23/01 Re: joint parties request to submit names to the Court with respect to possible mediators: Application granted. The parties will submit the names of the proposed mediators by 2/26/01 ( signed by Judge William H. Pauley III ); Copies mailed. (cd) (Entered: 02/26/2001)
153 Transcript of record of proceedings before Judge William H. Pauley III for the date(s) of 1/12/01 @11:10am. (lam) (Entered: 03/02/2001)
154 Transcript of record of proceedings before Judge William H. Pauley III on 1/22/01. (kw) (Entered: 03/06/2001)
Telephone Conference held before Judge William H. Pauley III. (lam) (Entered: 03/29/2001)
155 Memo−Endorsement on letter addressed to Judge Pauley from James M. Hershler, dated 03/08/01; granting counsel to defendants' request to submit supplemental declarations by 03/13/01 ; ( signed by Judge William H. Pauley III ); Copies mailed. (djc) (Entered: 03/12/2001)
Telephone Conference held before Judge William H. Pauley III. (lam) (Entered: 03/29/2001)
156 SCHEDULING ORDER: counsel for this action are directed to participate in a pretrial telephone conference scheduled for 3/27/01 at 10:30 a.m. ( signed by Judge William H. Pauley III ); Copies mailed. (kw) (Entered: 03/27/2001)
Pretrial telephone conference set at 10:30 a.m. on 3/27/01 before Judge William H. Pauley III. (kw) (Entered: 03/27/2001)
157 SCHEDULING ORDER: the parties will submit to chambers a joint pre−trial order and their pre−marked trial exhibits by 3/29/01 at 5:00 p.m.; a final pre−trial telephone conference is scheduled for 3/30/01 at 11:30 a.m. ( signed by Judge William H. Pauley III ); Copies mailed. (sac) (Entered: 03/29/2001)

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03/30/2001 03/30/2001
04/02/2001
04/02/2001
04/02/2001 04/03/2001
04/04/2001 04/04/2001 04/04/2001 04/05/2001 04/06/2001 04/06/2001 04/06/2001 04/06/2001 04/06/2001 04/06/2001 04/06/2001

Telephone Conference held before Judge William H. Pauley III . (lam) (Entered: 04/03/2001)
164 CONSENT ORDER; the parties consent to the filing under seal of the Declaration of Sylvia Ruiz, the Exhibits to the Declaration of Michael Bermudez, the Exhibits to the Supplemental Declaration of Jacquelyn Flaum, and the exhibits to the declarations of plaintiffs' witnesses in their entirety because they contain the names and other personally−identifiable confidential information of welfare applicants at the Job Centers ; (signed by Judge William H. Pauley III ); (djc) (Entered: 04/06/2001)
159 Letter filed by the City defts, addressed to Judge Pauley from Caroline M. Brown, dated 3/27/01, re: City defts move the Court to strike the 5th Report of pltffs' expert Richard Faust on the ground that it was untimely produced to City defts; in the alternative, City defts move the Court to strike those portions of the report that offer an opinion on matters beyond Mr. Faust's expertise. (lam) (Entered: 04/04/2001)
160 Letter filed by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards addressed to Judge Pauley from Marc Cohan, Welfare Law Center, dated 3/29/01, re: in response to City defts' letter of 3/27/01 to oppose their motion to strike the 5th Report of pltffs' Expert Richard Faust. (lam) (Entered: 04/04/2001)
Bench trial begun before Judge William H. Pauley III (lam) (Entered: 04/05/2001)
Bench trial concluded before Judge William H. Pauley III; the submission of simultaneaous proposed findings and memorandum of law are due 5/4/01, and simultaneous responsive briefs are due 6/4/01, decision reserved. (lam) (Entered: 04/05/2001)
158 SEALED DOCUMENT placed in vault. (da) (Entered: 04/04/2001)
161 SEALED DOCUMENT placed in vault. (da) (Entered: 04/05/2001)
162 SEALED DOCUMENT placed in vault. (da) (Entered: 04/05/2001)
163 Transcript of record of proceedings before Judge William H. Pauley III for the date(s) of 2/16/01 @10:30am. (lam) (Entered: 04/05/2001)
165 WITNESS DECLARATION of America Antigua by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards. (sn) (Entered: 04/10/2001)
165 WITNESS DECLARATION of Wanda Baez by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards. (sn) (Entered: 04/10/2001)
165 WITNESS DECLARATION of Sharon Boxill by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards. (sn) (Entered: 04/10/2001)
165 WITNESS DECLARATION of Robert J. Field by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards. (sn) (Entered: 04/10/2001)
165 WITNESS DECLARATION of Randal S. Jeffrey by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards. (sn) (Entered: 04/10/2001)
165 WITNESS DECLARATION of Alexandria Rouse by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards. (sn) (Entered: 04/10/2001)
165 WITNESS DECLARATION of Anairis Suero by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards. (sn) (Entered: 04/10/2001)

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04/06/2001 04/06/2001 04/06/2001 04/06/2001 04/10/2001
05/02/2001 05/02/2001
05/04/2001 05/11/2001 05/11/2001 05/11/2001 05/11/2001 05/16/2001
05/16/2001 05/17/2001 05/25/2001

165 WITNESS DECLARATION of Carmen Urena by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards. (sn) (Entered: 04/10/2001)
165 WITNESS DECLARATION of Laura Vazquez by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards. (sn) (Entered: 04/10/2001)
165 WITNESS DECLARATION of Norma Wharton by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards. (sn) (Entered: 04/10/2001)
165 Stipulated facts between pltffs and City defts. (sn) (Entered: 04/10/2001)
166 SCHEDULING ORDER: the parties will serve and file their findings of fact and memorandum of law by 5/4/01. Courtesy copies of all findings of fact and memoranda of law will be submitted to chambers in printed form and on computer disk formatted for WordPerfect 8.0. The parties will serve and file their reply memoranda by 6/4/01. ( signed by Judge William H. Pauley III ); Copies mailed. (kw) (Entered: 04/12/2001)
167 Transcript of record of proceedings before Judge William H. Pauley III for the date(s) of 3/8/01 @3:30pm. (lam) (Entered: 05/02/2001)
168 Memo−Endorsement on letter addressed to Judge Pauley from Caroline M. Brown, dated 5/1/01. Re: City defendants writes to request an extension of the filing date for the findings of fact, conclusions of law and memoranda of law until 5/11/01. Application granted. City defendants will file their findings of fact, conclusions of law, and memorandum of law by 5/11/01 . ( signed by Judge William H. Pauley III ); Copies mailed. (kw) (Entered: 05/03/2001)
169 Memo−Endorsement on letter addressed to Judge Pauley from Marc Cohan, dated 05/02/01; all parties will file and serve their submissions of Findings of Fact and Memoranda of Law by 05/11/01 ; (signed by Judge William H. Pauley III ); Copies mailed. (djc) Modified on 05/08/2001 (Entered: 05/07/2001)
170 POST−TRIAL MEMORANDUM OF LAW by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richardsi. (lam) (Entered: 05/15/2001)
171 PLTFFS FINDINGS OF FACT AND CONCLUSIONS OF LAW (lam) (Entered: 05/15/2001)
172 STATE DEFTS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW (filed in night deposit on 5/11/01 @5:31pm) (lam) (Entered: 05/15/2001)
173 POST TRIAL MEMORANDUM OF LAW by State defts Brian J. Wing, Barbara DeBuono (filed in night deposit on 5/11/01 @5:31pm) (lam) (Entered: 05/15/2001)
174 Memo−Endorsement on letter addressed to Judge Pauley from Emily Johnson Henn, Marc Cohan, and James Hershler dated 5/9/01. Re: counsel for parties jointly requests a waiver o the Court's page limit for memoranda of law; Application granted. The parties memoranda of law are not to exceed Forty Pages . ( signed by Judge William H. Pauley III ); Copies mailed. (ae) (Entered: 05/16/2001)
175 Memo−Endorsement on letter addressed to Judge Pauley from Caroline M. Brown, dated 5/10/01. Re: granting all parties leave to file a memorandum of law not in excess of fifty pages . ( signed by Judge William H. Pauley III ); Copies mailed. (kg) (Entered: 05/16/2001)
176 MANDATE OF USCA WITHDRAWING APPEAL (certified copy) Re: withdrawing [136−1] appeal by Jason Turner, Rudolph Giuliani. 00−9460, Roseann B. Mackechnie, Clerk. (sg) (Entered: 05/18/2001)
177 Transcript of record of proceedings before Judge William H. Pauley III for the date(s) of 4/2,3/01. (kg) (Entered: 05/25/2001)

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06/04/2001 06/04/2001 06/06/2001
06/12/2001 06/12/2001 07/12/2001 07/12/2001 07/12/2001 07/25/2001
10/21/2002 10/21/2002 10/21/2002 10/21/2002 10/21/2002 10/21/2002 10/21/2002 10/21/2002 10/23/2002 10/23/2002 05/27/2004

178 REPLY MEMORANDUM by State defts Brian J. Wing, Antonia Novello in further support of their applicaiton for judgment dismissing the complaint. (lam) (Entered: 06/06/2001)
179 STATE DEFTS' REPLY PROPOSED FINDINGS OF FACT. (lam) (Entered: 06/06/2001)
180 Memo−Endorsement on letter addressed to Judge Pauley from Constance P. Carden, dated 5/31/01; all parties may file rply briefs that do not exceed 40 pages in length. ( signed by Judge William H. Pauley III ); Copies mailed. (sac) (Entered: 06/07/2001)
181 SUPPLEMENTAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by plaintiffs. (kw) (Entered: 06/15/2001)
182 POST−TRIAL REPLY MEMORANDUM by plaintiffs. (kw) (Entered: 06/15/2001)
183 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards. (sac) (Entered: 07/13/2001)
184 POST−TRIAL REPLY MEMORANDUM by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards. (sac) (Entered: 07/13/2001)
185 SUPPLEMENTAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards. (sac) (Entered: 07/13/2001)
186 ORDER; granting [142−1] motion for Emily Johnson Henn to appear pro hac vice for defts Giuliani and Turner. ( signed by Judge William H. Pauley III ); Copies mailed. Original document forwarded to Attorney Admissions Clerk. (kkc) (Entered: 07/26/2001)
187 Filed (Policy Directive #99−06R(2) Family Independence Administration. (Exhibit QQQ) (rag) (Entered: 10/22/2002)
188 Filed Report of City Defendants' Expert William Waldman. (dated 3/9/01) (rag) (Entered: 10/22/2002)
189 CITY DEFENDANTS'DEPOSITION DESIGNATIONS. (rag) (Entered: 10/22/2002)
190 CITY DEFENDANTS' DEPOSITION COUNTER−DESIGNATIONS. (rag) (Entered: 10/22/2002)
191 DECLARATIONS OF CITY DEFENDANTS' WITNESSES VOLUME I. (rag) (Entered: 10/22/2002)
192 DECLARATIONS OF CITY DEFENDANTS' WITNESSES VOLUME II. (rag) (Entered: 10/22/2002)
193 DECLARATION OF JESSICA POLLNER Re: Statistical results of plaintiffs' audit of case files in this matter. (dated 2/14/01) (rag) Modified on 10/22/2002 (Entered: 10/22/2002)
194 DECLARATION of Jessica Pollner Re: Statistical results of plaintiffs' audit of case files in this matter.(dated 3/9/01) (rag) Modified on 10/22/2002 (Entered: 10/22/2002)
195 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by City Defendants Rudolph Giuliani, Jason Turner . (djc) (Entered: 10/24/2002)
196 Post−Trial MEMORANDUM OF LAW by Rudolph Giuliani, Jason Turner (djc) (Entered: 10/24/2002)
197 Letter addressed to Judge Pauley from Randall Jeffrey dated 5/21/04: plntf's counsel NY Legal Assistance has moved to 450 West 33rd St., NY NY 10001. Document filed by Georgina Bonilla, Adriana Calabrese, Jenny Cuevas, Lue

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12/30/2004
01/06/2005 01/13/2005 01/13/2005 01/18/2005 01/28/2005 02/07/2005 02/14/2005
02/14/2005 02/23/2005

Garlick, Lakisha Reynolds, Elston Richards, April Smiley.(cd, ) (Entered: 05/27/2004)
198 MEMORANDUM AND OPINION # 91065. For the reasons further set forth in this Order, the plaintiff class is entitled to a permanent injunction requiring the City defendants and the State defendants to: (i) provide expedited food stamp service to eligible applications within 7 days; (ii) separately process applications for food stamps when the applications for cash assistane are denied or withdrawn; (iii) send notices to applicants confirming voluntary withdrawals for Medicaid in accord with 42 C.F.R. 435.913 and document such withdrawals pursuant to 7 C.F.R. 273.2(c)(6); and (iv) provide adequate and timely notice by correctly completing Forms W−145HH and M−3. The parties are directed to submit a proposed final judgment consistent with this Memorandum and Opinion by 1/18/05 (Signed by Judge William H. Pauley III on 12/30/04) Copies mailed by Chambers.(yv, ) Modified on 1/3/2005 (yv, ). (Entered: 01/03/2005)
199 ORDER. All parties are directed to appear for a status conference on 1/28/2005 at 02:00 PM in Courtroom 11D in the Daniel Patrick Moynihan U.S. Courthouse, 500 Pearl Street, New York, NY (Signed by Judge William H. Pauley III on 1/4/05) Copies mailed by Chambers.(yv, ) (Entered: 01/11/2005)
200 MOTION for Reconsideration of the Court's Order dated 12/30/2004. Document filed by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards. Return Date set for 2/9/2005 09:30 AM. (jp, ) (Entered: 01/18/2005)
201 MEMORANDUM OF LAW in Support re: 200 MOTION for Reconsideration.. Document filed by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards. (jp, ) (Entered: 01/18/2005)
202 ENDORSED LETTER addressed to Judge Pauley from Carolline Brown dated 1/14/05: re extension of time to submit a proposed Judgment: application granted. The date for filing the proposed judgment is adjourned pending plntfs motion for reconsideration. Additionally, the conference scheduled for 1/28/05 is adjourned to 2/18/05 at 12:00 pm. (Signed by Judge William H. Pauley III on 1/14/05) (cd, ) (Entered: 01/20/2005)
203 MEMORANDUM OF LAW in Opposition re: 200 MOTION for Reconsideration. Document filed by Rudolph Giuliani, Jason Turner. (rw, ) (Entered: 02/07/2005)
204 MEMORANDUM OF LAW in Support re: 200 MOTION for Reconsideration.. Document filed by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards. (fk, ) (Entered: 02/11/2005)
205 AMENDED MEMORANDUM AND OPINION #91065, the plntf class is entitled to a permanent injunction requiring the City defts and the State defts to: provide expedited food stamp service to eligible applicants within five days, as further set forth in this document. The parties are directed to submit a proposed final judgment consistent with this Amended Memorandum and Opinion by 2/17/05. (Signed by Judge William H. Pauley III on 2/14/05) copies sent by chambers(cd, ). (Entered: 02/16/2005)
206 ORDER granting 200 Motion for Reconsideration. Upon reconsideration, this Court concludes that plntfs' pendent state claims are privately enforceable in this actin. This Court's reasoning is set forth in an Amended Opinion dated 2/14/05. The 12/30/04 Memo and Opinion is withdrawn and is withdrawn and is superceded by the Amended Opinion dated 2/14/05. . (Signed by Judge William H. Pauley III on 2/14/05) copies sent by chambers.(cd, ) (Entered: 02/17/2005)
207 ENDORSED LETTER addressed to Judge Pauley from Marc Cohan dated 02/14/05 re: parties jointly request a postponement of the conference presently scheduled for 02/18/05; Application granted. The parties are directed to appear for a conference on 02/24/05 at 2:15 p.m. The date for filing the proposed judgment is adjourned pending that conference. (Signed by Judge William H. Pauley III on 2/18/05) copies faxed by Chambers.(djc, ) (Entered: 02/24/2005)

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03/01/2005
04/12/2005 04/12/2005 04/12/2005 04/12/2005 04/21/2005 04/21/2005 04/21/2005
12/14/2005 12/15/2005
12/27/2005 12/27/2005 01/12/2006
01/12/2006

208 ORDER that the parties shall submit an agreed upon judgment or portions thereof, by 3/24/05; parties shall submit their counter proposals concerning the judgment, if any, by 3/31/05; parties shall submit their memoranda in support of their counter proposals, if any, by 4/12/05. (Signed by Judge William H. Pauley III on 2/24/05) (dle, ) (Entered: 03/04/2005)
209 DECLARATION of Seth Diamond in Support of City Defendants' Memorandum regarding the City and State Defendants' Proposed Judgment in this case. (djc, ) (Entered: 04/19/2005)
210 CITY DEFENDANTS' MEMORANDUM OF LAW in Support of the Proposed Judgment of the CIty and State Defendants. (docmt received in night dep. on 4/12/05 at 6:11 p.m.) (djc, ) (Entered: 04/19/2005)
211 STATE DEFENDANTS MEMORANDUM OF LAW in Support of PROPOSED JUDGMENT OF THE CITY AND STATE DEFENDANTS. (djc, ) (Entered: 04/19/2005)
212 MEMORANDUM OF LAW in Support IN SUPPORT OF THEIR PROPOSED FI NAL JUDGMENT. (djc, ) (Entered: 04/19/2005)
213 REPLY to plaintiffs' arguments and in further support of the proposed judgment submitted by the City and State Defendants. Document filed by Brian J. Wing, Barbara DeBuono, Jason Turner. (ll, ) (Entered: 04/26/2005)
214 MEMORANDUM OF LAW in Support of their proposed final Judgment. re: 213 Reply. Document filed by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards. (ll, ) (Entered: 04/26/2005)
215 ENDORSED LETTER addressed to Judge Pauley from Marc Cohan dated 4/14/05: granting application to submit responsive memo of law re the proposed judgments of no more than 10 pages in length by no later than the close of business on 4/21/05. (Signed by Judge William H. Pauley III on 4/18/05) copies sent by chambers(cd, ) (Entered: 04/28/2005)
216 JUDGMENT resolving action. (Signed by Judge William H. Pauley III on 12/14/05) (ml, ) (Entered: 12/14/2005)
Mailed notice of Right to Appeal re: 216 Judgment and to Attorney(s) of Record: Anne K. Callagy, Constance P. Carden, Marc Cohan, Esperanza Colon, Joshua E. Goldfein, Adriene L. Holder, Randal S. Jeffrey, Christopher D. Lamb, Hwan−Hui Helen Lee, Scott Alan Rosenberg, Kenneth Rosenfeld, Rebecca L. Scharf, Yisroel Schulman. (lma, ) (Entered: 12/15/2005)
217 STIPULATION AND ORDER that the partie stipulate and agree that any motion for attorney's fees, costs and disbursements, will not be due for an additional 90 days to and including 3/29/06; conference is scheduled for 1/3/06 at 10:00 a.m. (Signed by Judge William H. Pauley III on 12/21/05) (dle, ) (Entered: 12/27/2005)
Received returned mail re: 216 Judgment. Mail was addressed to Scott A. Rosenberg of The Legal Aid Society at 90 Church Street, New York, NY 10007 and was returned for the following reason(s): no foward order on file. (tve, ) (Entered: 12/28/2005)
218 NOTICE OF APPEAL from 216 Judgment. Document filed by Brian J. Wing, Barbara DeBuono. Filing fee $ 255.00, receipt number E 566920. Copies of Notice of Appeal mailed to Attorney(s) of Record: Welfare Law Center, Inc.; NY Legal Assistance Group; The Legal Aid Society; Northern Manhattan Improvement Corp.. (tp, ) (Entered: 01/17/2006)
219 NOTICE OF APPEAL from 216 Judgment. Document filed by Brian J. Wing, Rudolph Giuliani, Jason Turner. Filing fee $ 255.00, receipt number E 566361. Copies of Notice of Appeal mailed to Attorney(s) of Record: Welfare Law Center, Inc.; NY Legal Assistance Group; The Legal Aid Society; Northern Manhattan Improvement Corp. (tp, ) (Entered: 01/17/2006)

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01/17/2006 01/17/2006 01/17/2006 01/17/2006 01/18/2006
01/27/2006
03/03/2006
03/21/2006
04/20/2006
04/20/2006
04/28/2006 04/28/2006 04/28/2006 04/28/2006 04/28/2006 04/28/2006 04/28/2006 04/28/2006

Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 218 Notice of Appeal. (tp, ) (Entered: 01/17/2006)
Transmission of Notice of Appeal to the District Judge re: 218 Notice of Appeal. (tp, ) (Entered: 01/17/2006)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 219 Notice of Appeal,. (tp, ) (Entered: 01/17/2006)
Transmission of Notice of Appeal to the District Judge re: 219 Notice of Appeal,. (tp, ) (Entered: 01/17/2006)
220 SCHEDULING ORDER: Motions due by 3/29/2006. Responses due by 4/19/2006 Replies due by 4/28/2006. Oral Argument set for 5/12/2006 11:00 AM before Judge William H. Pauley III. See Document for further Scheduling Deadlines. (Signed by Judge William H. Pauley III on 1/13/06) (sac, ) (Entered: 01/19/2006)
Received returned mail re: 216 Judgment. Mail was addressed to Randal S. Jeffrey of New York Legal Assistance Group at 130 East 59th Street, 14th Floor, New York, NY 10022 and was returned for the following reason(s): not deliverable as adressed. (tve, ) (Entered: 02/01/2006)
221 Appeal Record Sent to USCA (Index). Notice that the Original index to the record on Appeal for 218 Notice of Appeal, filed by Brian J. Wing,, Barbara DeBuono,, 136 Notice of Appeal, filed by Rudolph Giuliani,, Jason Turner, USCA Case Number 06−0283(L), 06−0284 (Con), 3 Copies of the index, Certified Clerk Certificate and Certified Docket Sheet were transmitted to the U.S. Court of Appeals. (nd, ) Additional attachment(s) added on 9/12/2006 (nd, ). (Entered: 03/03/2006)
222 SCHEDULING ORDER: Motions due by 4/19/2006. Responses due by 5/10/2006 Replies due by 5/22/2006. Oral Argument set for 6/15/2006 02:30 PM before Judge William H. Pauley III. (Signed by Judge William H. Pauley III on 3/17/06) "Copies Mailed By Chambers"(jco, ) (Entered: 03/22/2006)
223 REVISED SCHEDULING ORDER: Plaintiff Motion for attorneys' fees and costs due by 7/19/2006. Responses due by 8/10/2006. Replies due by 8/22/2006. Oral Argument set for 9/13/2006 at 02:30 PM before Judge William H. Pauley III. (Signed by Judge William H. Pauley III on 4/19/2006) Copies Mailed By Chambers.(lb, ) (Entered: 04/20/2006)
224 ENDORSED LETTER: addressed to Judge William H. Pauley III from James M. Hershler dated 4/11/2006 re: request that the documents listed in this letter be filed with the District Court clerk so that they may be entered on the docket. ENDORSEMENT: Counsel is directed to deliver copies of these documents to the Court for filing. So Ordered (Signed by Judge William H. Pauley III on 4/18/2006) (lb, ) (Entered: 04/20/2006)
225 JOINT PRETRIAL ORDER. Document filed by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards.(jco, ) (Entered: 05/01/2006)
226 SUPPLEMENTAL DECLARATION of Betty Rice. (jco, ) (Entered: 05/01/2006)
227 SUPPLEMENTAL DEPOSITION DESIGNATION. Document filed by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards. (jco, ) (Entered: 05/01/2006)
228 DECLARATION of Cornelia McElligott. (jco, ) (Entered: 05/01/2006)
229 DECLARATION of Russell J. Hanks. (jco, ) (Entered: 05/01/2006)
230 DECLARATION of Betty Rice. (jco, ) (Entered: 05/01/2006)
231 FIFTH REPORT OF PLAINTIFFS' EXPERT RICHARD FAUST. (jco, ) (Entered: 05/01/2006)
232 PLAINTIFFS' DEPOSITION DESIGNATIONS. Document filed by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards. (jco, ) (Entered: 05/01/2006)

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04/28/2006 04/28/2006 04/28/2006 04/28/2006 04/28/2006 05/09/2006 05/24/2006
06/01/2006
07/13/2006 07/13/2006 07/13/2006 07/13/2006 08/08/2006
08/21/2006
09/22/2006
09/22/2006
09/22/2006 10/12/2006

233 STATE DEFENDANTS' CROSS−DEPOSITION DESIGNATIONS. (jco, ) (Entered: 05/01/2006)
234 STATE DEFENDANTS' DEPOSITION DESIGNATIONS. (jco, ) (Entered: 05/01/2006)
235 FOURTH REPORT OF PLAINTIFFS' EXPERT RICHARD FAUST. (jco, ) (Entered: 05/01/2006)
236 DECLARATION of Steve Ptak. Exhibits attached. (jco, ) (Entered: 05/01/2006)
237 SUPPLEMENTAL DECLARATION of Steve Ptak. (jco, ) (Entered: 05/01/2006)
238 LETTER addressed to Judge Pauley from Richard Dearing dated 4/24/06: re memo endorsed dated 4/18, documents previously requested are provided. Document filed by Rudolph Giuliani et al.(cd, ) (Entered: 05/10/2006)
239 STIPULATION: It is hereby stipulated and agreed between the parties that: the plaintiffs' trial exhibits 1 through 157, as identified in the annexed Exhibit 1, are part of the record in this case. The City defendants' trial exhibits A through PPP, as identified in the annexed Exhibit 2, are part of the record in this case... Except to the extent that they are already in the Court's file, the documents described in this stip. will be held by the attorneys of record for the respective parties until requested by the U.S.C. of Appeals for the Second Circuit. (Signed by Judge William H. Pauley III on 5/19/2006) (lb, ) (Entered: 05/24/2006)
240 First Supplemental ROA Sent to USCA (Index). Notice that the Supplemental Index to the record on Appeal for 219 Notice of Appeal, filed by Brian J. Wing,, Rudolph Giuliani,, Jason Turner, USCA Case Number 06−0283−cv, 3 Copies of the index, Certified Supplemental Clerk Certificate and Certified Docket Sheet were transmitted to the U.S. Court of Appeals. (nd, ) Additional attachment(s) added on 9/12/2006 (nd, ). (Entered: 06/01/2006)
241 SUPPLEMENTAL DECLARATION of Randale S. Jeffrey. (jmi, ) (Entered: 07/14/2006)
242 Report of Plaintiffs' Expert Richard Faust. (jmi, ) (Entered: 07/14/2006)
243 Second Report of Plaintiffs' Expert Richard Faust. (jmi, ) (Entered: 07/14/2006)
244 Third Report of Plaintiffs' Expert Richard Faust(independent consultant). (djc, ) (Entered: 07/14/2006)
245 REVISED SCHEDULING ORDER: Plaintiffs Motions for Atty. Fees due by 8/21/2006. Responses due by 9/12/2006 Replies due by 9/25/2006. Oral Argument set for 10/13/2006 12:00 PM before Judge William H. Pauley III. (Signed by Judge William H. Pauley III on 7/28/06) (pl, ) (Entered: 08/08/2006)
246 REVISED SCHEDULING ORDER:Plaintiffs motions for Atty's Fees and costs due by 9/22/2006. Responses due by 10/13/2006 Replies due by 10/25/2006. Oral Argument set for 11/9/2006 11:00 AM before Judge William H. Pauley III. (Signed by Judge William H. Pauley III on 8/18/06) (pl, ) (Entered: 08/22/2006)
247 MOTION for Attorney Fees and Cost w/ attch. Delcaration in support of Marc Cohan. Document filed by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards. Return Date set for 11/9/2006 11:00 AM. (pl, ) Modified on 9/26/2006 (pl, ). (Entered: 09/26/2006)
248 MEMORANDUM OF LAW in Support re: 247 MOTION for Attorney Fees. Document filed by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards. (pl, ) (Entered: 09/26/2006)
249 PART II APPENDICES to 247 MOTION for Attorney Fees. Document filed by Lakisha Reynolds, Georgina Bonilla, April Smiley, Lue Garlick, Adriana Calabrese, Jenny Cuevas, Elston Richards.(pl, ) (Entered: 09/26/2006)
250 ENDORSED LETTER addressed to Judge William H. Pauley III from Jonathan Pines dated 10/6/2006 re: requesting a 30 day enlargement of time within which to resolve plaintiffs' pending fee motion, currently returnable 11/9/2006.

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10/23/2006 10/23/2006 11/20/2006 11/20/2006 12/20/2006
12/20/2006 01/26/2007
01/31/2007
06/14/2007 06/14/2007 12/04/2007

ENDORSEMENT: Application Granted. So Ordered. (Signed by Judge William H. Pauley III on 10/10/2006) (lb, ) (Entered: 10/13/2006)
251 ORDER of USCA (Certified Copy) as to 219 Notice of Appeal, filed by Brian J. Wing, Rudolph Giuliani, Jason Turner. Only parties, Rudolph Giuliani and Jason Turner hereby withdraw their appeal with prejudice pursuant to Rule 42(b) of the FRAP as further described herein. USCA Case Number 06−0283. Roseann B. MacKechnie, Clerk USCA. Certified: 10/20/06. (tp, ) (Entered: 10/23/2006)
Transmission of USCA Mandate/Order to the District Judge re: 251 USCA Mandate Withdrawing Appeal. (tp, ) (Entered: 10/23/2006)
252 ENDORSED LETTER addressed to Judge Pauley from Jonathan Pines dated 11/6/06 re: counsel requests an enlargement of time within which to resolve plaintiff's pending fee motion...; Application granted. The parties' return date is adjourned to 12/15/06. (Signed by Judge William H. Pauley III on 11/8/06) (djc, ) (Entered: 11/21/2006)
Set/Reset Deadlines as to 247 MOTION for Attorney Fees.. Motion Hearing set for 12/15/2006 10:30 AM before Judge William H. Pauley III. (djc, ) (Entered: 11/21/2006)
253 ENDORSED LETTER addressed to Judge William H. Pauley III from Jonathan Pines dated 12/11/2006 re: on behalf of the City and State Defendants in this action, they are requesting a third, small enlargement of 1 week within which to resolve plaintiffs' pending fee motion, currently returnable 12/15/2006. ENDORSEMENT: Application Granted. Oral argument is adjourned to 1/19/2007 at 12:00 p.m. So Ordered. (Signed by Judge William H. Pauley III on 12/18/2006) (lb, ) (Entered: 12/20/2006)
Set/Reset Hearings: Oral Argument set for 1/19/2007 at 12:00 PM before Judge William H. Pauley III. (lb, ) (Entered: 12/20/2006)
254 ENDORSED LETTER addressed to Judge William H. Pauley from Jonathan Pines dated 1/18/2007 re: to writing to request a final brief adjournment of the return date for Plaintiffs' fee motion in the above−referenced action. The parties have reached agreement regarding fees, with onlythe last level of approval of the State defendants remaining outstanding. Oral Argument set for 3/2/2007 10:45 AM before Judge William H. Pauley III. ENDORSEMENT: Application granted. The oral argument is adjourned to 3/2/07 at 10:45 a.m. SO ORDERED. (Signed by Judge William H. Pauley III on 1/26/2007) (jmi) (Entered: 01/30/2007)
255 STIPULATION AND ORDER: It is hereby stipulated agreed, and ordered as follows: ($2,559,675.94) in full satisfaction of all claims for attorneys' fees and costs sought by the plaintiff class as against the City defendants for the period through December 14, 2005. Payment of the City fee payment shall be made by checks, issued in the amounts that follow, made payable to the following entities, and at the addresses shown. New York Legal Assistance Group $688,775.72, Northern Manhattan Improvement Corp. $265,557.16, Legal Aid Society $922,937.84. Welfare Law Center $682,405.22. The City Defendants will deliver the City fee payment within sixty days of the date of this stipulation is "so ordered" by the Court. (Signed by Judge William H. Pauley III on 1/31/07) (js) (Entered: 02/01/2007)
Appeal Record Sent to USCA (File). Indexed record on Appeal Files for 219 Notice of Appeal, filed by Jason Turner, Brian J. Wing, Rudolph Giuliani, 218 Notice of Appeal, filed by Barbara DeBuono, Brian J. Wing USCA Case Number 06−0283, were transmitted to the U.S. Court of Appeals. (tp) (Entered: 06/14/2007)
First Supplemental ROA Sent to USCA (File). Supplemental Indexed record on Appeal Files for 219 Notice of Appeal, filed by Jason Turner, Brian J. Wing, Rudolph Giuliani, 218 Notice of Appeal, filed by Barbara DeBuono, Brian J. Wing USCA Case Number 06−0283, were transmitted to the U.S. Court of Appeals. (tp) (Entered: 06/14/2007)
256 STIPULATION AND ORDER the State Defendants' obligation to pay attorneys' fees and costs to the Plaintiff Class pursuant to the January 31, 2007 Stipulation

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06/17/2008
06/17/2008 07/25/2008 04/23/2010
12/23/2010 12/23/2010

and Order is hereby tolled pending the conclusion of all appellate proceedings in this action. Following the conclusion of all appellate proceedings in the Second Circuit and the United States Supreme Court in review of the December 14, 2005 judgment, the State Defendants shall have 30 days to move to vacate or modify their obligations to pay attorney's fees and costs pursuant to the January 31, 2007 Stipulation and Order. However, if the Second Circuit's October 31, 2007 decision remains fully in effect upon the conclusion of all appellate proceedings, the State Defendants' obligation to pay attorney's fees and costs pursuant to January 31,2007 Stipulation and Order shall be deemed vacated and void without the need for a motion. Facsimile signatures are acceptable for execution and filing of this Stipulation and Order. SO ORDERED (Signed by Judge William H. Pauley, III on 12/3/2007) (jmi) (Entered: 12/04/2007)
257 MANDATE of USCA (Certified Copy) as to 219 Notice of Appeal, filed by Jason Turner, Brian J. Wing, Rudolph Giuliani, 218 Notice of Appeal, filed by Barbara DeBuono, Brian J. Wing USCA Case Number 06−0283−cv (L) and 06−0284−cv (CON). On Consideration whereof, it is hereby ORDER, ADJUDGED and DECREED that the judgment of the said district court is REVERSED and the complaint DISMISSED, in accordance with the opinion of this court. Catherine O'Hagan Wolfe, Clerk USCA. Issued As Mandate: 6/16/2008. (nd) (Entered: 06/17/2008)
Transmission of USCA Mandate/Order to the District Judge re: 257 USCA Mandate,,. (nd) (Entered: 06/17/2008)
Appeal and First Supplemental records Returned. Indexed record on Appeal Files for Appeal Record Sent to USCA − File, Supplemental ROA Sent to USCA − File, USCA Case Number 06−0283, returned from the U.S. Court of Appeals. (nd) (Entered: 07/28/2008)
258 STIPULATION AND ORDER: The City of New York shall pay the Plaintiff Class, and the Plaintiff shall shall agree to accept, two hundred and seventy−five thousand dollars ($275,000.00), in full satisfaction of all claims for attorneys' fees and costs sought by the Plaintiff Class as against the City Defendants for the period from 12/15/05 through 12/14/08. Payment of the Fee shall be made by checks, issued in the amounts, made payable to the entities, and at the addresses as further set forth in this Order. SO ORDERED. (Signed by Judge William H. Pauley, III on 4/23/2010) (tro) (Entered: 04/26/2010)
259 STIPULATION AND PROTECTIVE ORDER: Regarding procedures to be followed that shall govern the handling of confidential material. SO ORDERED. (Signed by Judge William H. Pauley, III on 12/23/10) (db) (Entered: 12/23/2010)
260 STIPULATION: 1. Within ten (l0) days after the effective date of this Stipulation, the New York City Human Resources Administration ("HRA") will identify certain households who required, but did not receive, a FSD between December 15, 2005 and November 30, 2006, as a result of an application at a Job Center in which a request for cash assistance was denied (rejected or closed) ("identified households"), using the following identifiers: (a) Public assistance/Food Stamp denials under codes that require a FSD as listed in the Food Stamp Separate Determination Desk Guide where the transaction date associated with the codes was between December 15, 2005 and November 30, 2006;(b) Public assistance denials on expedited Food Stamp cases using Food Stamp closing code Y99 where the transaction date associated with the codewas between December 15, 2005 and November 30, 2006; (c) Food Stamp denials under rejection code J05 where the transaction date associated with the code was between December 15, 2005 and November 30, 2006. Households that became active for Food Stamp benefits within 210 days of the Job Center denial: 2. HRA will issue, pursuant to paragraphs 3 and 4 of this Stipulation, restored Food Stamp benefits to identified households that became active for Food Stampbenefits within 210 days of the denial. The restored Food Stamp benefits will be added to the household's Electronic Benefit Transfer ("EBT") account. 3. The restored Food Stamp benefits for each identified household will be calculated by multiplying (a) the amount of the household's monthly Food Stamp grant once the household became active for Food Stamp benefits, by (b) the number of months of lost Food Stamp benefits from the application file date until the month prior to the first month of benefits issued when

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07/22/2011

the household became active for Food Stamp benefits, all other details are as further set forth in said Order. (Signed by Judge William H. Pauley, III on 12/22/10) (db) (Entered: 12/23/2010)
261 STIPULATION AND ORDER: The City of New York shall pay the Plaintiff Class, and the Plaintiff Class shall agree to accept, eighty−six thousand dollars ($86,000.00), in full satisfaction of all claims for attorneys' fees and costs sought by the Plaintiff Class as against the City Defendants for the period from 12/15/2008 through 6/14/2010. Payments shall be issued as further set forth in this Order. The City Defendants will deliver the Fee Payment within ninety days of the date this Stipulation is "so ordered" by the Court. (Signed by Judge William H. Pauley, III on 7/22/2011) (tro) (Entered: 08/02/2011)

 
 Reynolds v. Giuliani, 506 F.3d 183 (2007)

506 F.3d 183 United States Court of Appeals,
Second Circuit.
Lakisha REYNOLDS, on her own behalf and on behalf of all others similarly situated, Georgina Bonilla, on her own behalf and on behalf of all others similarly situated, April Smiley, on her own
behalf and on behalf of all others similarly situated, Lue Garlick, on her own behalf and on behalf of all others similarly situated, Adriana Calabrese, on her own behalf and on behalf of all others similarly situated, Jenny Cuevas, on her own behalf and on behalf of all others similarly situated, Elston Richards, on his own behalf and
on behalf of all others similarly situated, Plaintiffs–Appellees, v.
Rudolph GIULIANI, as Mayor of the City of New York, Jason Turner, as Commissioner of the New York City Department of Social Services, Brian J.
Wing, as Commissioner of the New York State Office of Temporary and Disability Assistance, Barbara DeBuono, as Commissioner of the New
York State Department of Health, Defendants–Appellants.
Nos. 06–0283–cv(L), 06–0284–cv(CON). | Argued March 5, 2007. | Decided Oct. 31, 2007.
Synopsis Background: Applicants for food stamps, Medicaid or cash assistance in New York City brought § 1983 class action against City officials, alleging federal statutory violations in course of implementation of Welfare Reform Act, and against state officials, alleging failure to properly oversee City’s administration of assistance programs in violation of Due Process Clause and governing statutes. Following bench trial, the United States District Court for the Southern District of New York, 2005 WL 3428213, William H. Pauley, III, J., entered judgment for applicants, enjoining city officials to comply with specified provisions of state law, Food Stamp Act and Medicaid Act, and directing state officials to supervise City’s compliance with injunction and to perform monitoring duties. State officials appealed.
Holdings: The Court of Appeals, Cardamone, Circuit Judge, held that:

[1] state did not have non-delegable duty to administer decentralized food stamp and Medicaid programs;
[2] state’s efforts in supervising city’s continued compliance with federal law were not patently inadequate; and
[3] District Court should not have issued injunction.

Reversed.
Straub, Circuit Judge, filed opinion concurring in part and dissenting in part.

Attorneys and Law Firms

*185 Richard Dearing, Assistant Solicitor General, New York, New York (Eliot Spitzer, Attorney General, Michael S. Belohlavek, Senior Counsel, Division of Appeals and Opinions, James M. Hershler, Assistant Attorney General of the State of New York, New York, New York, of counsel), for State Defendants–Appellants.

Marc Cohan, Henry A. Freedman Welfare Law Center, Inc., New York, New York (Petra T. Tasheff, Henry A. Freedman *186 Welfare Law Center, Inc., New York, New York; Yisroel Schulman, Constance P. Carden, Randal S. Jeffrey, New York Legal Assistance Group,

New York, New York; Scott A. Rosenberg, Christopher D. Lamb, Hwan–Hui Helen Lee, The Legal Aid Society,

Civil Division, New York, New York; Kenneth Rosenfeld, Mary Ellen Burns, Northern Manhattan Improvement Corp., New York, New York, of counsel), for Plaintiffs–Appellees. Before: CARDAMONE, STRAUB, and WALLACE*, Circuit Judges.

*

Hon. J. Clifford Wallace, United States Court of

Appeals for the Ninth Circuit, sitting by designation.

Opinion

Judge STRAUB concurs in part and dissents in part, in a separate opinion. Judge WALLACE concurs in a separate opinion.
1

Reynolds v. Giuliani, 506 F.3d 183 (2007)
CARDAMONE, Circuit Judge:
Ordinarily the state and federal governments, under whose parallel jurisdiction we all live, rub along together pretty well. When they conflict, it is unlike when “ignorant armies clash by night” as Matthew Arnold famously phrased it. Instead there is forethought, policy considerations and, as here, legal argumentation. This appeal presents an occasion when the powers confided to the federal courts and those matters reserved to the states conflict. In the shift made ten years ago by Congress from an emphasis on welfare and food stamps to a focus on employment as a solution to long term poverty, the State of New York delegated the transition to the City of New York, but retained the power to supervise the City’s administrator of its changing assistance programs. New York City responded to the new mandate by revamping its infrastructure and policies to encourage welfare applicants to find jobs. Undoubtedly, the reforms posed an enormous administrative challenge to the City.
In December 1998 seven welfare applicants (together with other class members where appropriate, plaintiffs or appellees) brought a putative class action under 42 U.S.C. § 1983 on behalf of all New York City residents who have sought, are seeking or will seek to apply for food stamps, Medicaid or cash assistance at the City’s job centers. The complaint was lodged against defendants Rudolph Giuliani, former Mayor of New York City and Jason Turner, former Commissioner of the New York City Department of Social Services (collectively City or city defendants), as well as Brian J. Wing, former Commissioner of the New York State Office of Temporary and Disability Assistance, and Barbara DeBuono, former Commissioner of the New York State Department of Health (collectively state, state defendants or appellants), each in his or her official capacity. Plaintiffs alleged that the City engaged in unlawful conduct aimed to discourage and deter plaintiffs from obtaining benefits to which they were entitled and that the state failed to properly oversee and supervise the City’s administration of assistance programs.
Almost seven years later, the United States District Court for the Southern District of New York (Pauley, J.) awarded plaintiffs permanent injunctive relief, directing city defendants to comply with specified provisions of federal and state law and directing state defendants to supervise the City’s adherence to the injunction. Initially all the defendants appealed the judgment, but the City withdrew its appeal prior to oral argument before this Court. We are left then with the state *187 defendants’ challenge to the district court’s judgment. We agree with appellants’ contention that the record before us does not

support the imposition of liability on the state or warrant the issuance of a permanent injunction against it.
BACKGROUND
The Food Stamp Act, 7 U.S.C. § 2011 et seq., and the Medicaid Act, 42 U.S.C. § 1396 et seq., created cooperative federal-state programs aiming, respectively, to raise nutritional levels and furnish medical care to needy individuals. See 7 U.S.C. § 2011 (1999); 42 U.S.C. § 1396 (2003). The programs are implemented by state and local agencies under the aegis of the United States Department of Agriculture (food stamps) and the United States Department of Health and Human Services (Medicaid). 7 U.S.C. § 2020(a), (d) (1999); 42 U.S.C. §§ 1396, 1396c (2003).
In 1996 Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act, 42 U.S.C. § 601 et seq. (2003) (Welfare Reform Act), and set in motion dramatic changes in the delivery of welfare benefits nationwide. Notably, the Welfare Reform Act introduced the Temporary Assistance to Needy Families program with the express purpose of minimizing dependence on governmental benefits by promoting employment. See 42 U.S.C. §§ 601(a)(2), 602(a) (2003). The new program contained mandatory work requirements and time limits on eligibility for benefits. See, e.g., 42 U.S.C. § 602(a)(1)(A)(ii).
A. District Court Findings as to City Defendants’ Non–Compliance
The New York City agency in charge of local implementation of food stamp, Medicaid and cash assistance programs is the Human Resources Administration (city agency). The city agency processed welfare applications at 31 income support centers until 1998, at which time it began to convert the income support centers into job centers in response to the new federal policy reflected in the Welfare Reform Act. The aptly named job centers encouraged applicants to find work and required them to undergo a rigorous application process, including interviews with financial and employment planners. Early evidence suggested a “culture of improper deterrence” prevailed at the newly converted job centers, which was reflected in a decline in the number of applicants who received benefits from a City facility after its conversion to a job center.
2

Reynolds v. Giuliani, 506 F.3d 183 (2007)

In the course of this litigation, the City audited 29 income support and job centers to assess their compliance with federal and state law (September 2000 audit). On the basis of the September 2000 audit and other performance measures, the district court determined city defendants violated various rights secured to plaintiffs by federal law in four ways.
First, the City failed to provide a significant portion of eligible applicants with expedited food stamps within the mandated period of seven days. See 7 U.S.C. § 2020(e)(9) (1999); 7 C.F.R. § 273.2(i)(3)(i) (2007). Second, although the City was required to make separate determinations with regard to applicants’ eligibility for food stamps and Medicaid after their applications for cash assistance were denied, see 7 U.S.C. §§ 2014(b), 2020(i)(2) (1999); 7 C.F.R. § 273.2(b)(3) (2007); 42 U.S.C. § 1396a(a)(8) (2003); 42 C.F.R. §§ 435.906, 435.913 (2006), such determinations were made infrequently. Third, half of the withdrawn applicants audited were found to have been improperly withdrawn as a result of the City’s mishandling of notices and records. See 42 C.F.R. § 435.913 (2006), 7 C.F.R. § 273.2(c)(6) (2007). Fourth, the City *188 frequently failed to give adequate and complete notices to applicants regarding eligibility decisions, in violation of the plaintiffs’ due process rights under the Fourteenth Amendment and in violation of the regulations. See U.S. Const., amend. XIV, § 1; 7 C.F.R. § 273.10(g)(1) (2007); 42 C.F.R. §§ 435.911, 435.912 (2006).
B. The State Defendants
The Food Stamp and Medicaid Acts authorize the states to vest local agencies with responsibility for day-to-day administration of these benefits programs. See 7 U.S.C. § 2012(n) (1999) (defining State agency to include counterpart local agencies “in those States where such assistance programs are operated on a decentralized basis”); 42 U.S.C. § 1396a(a)(5) (2003) (requiring each state to designate a “single State agency” to “administer or to supervise the administration of [the State’s] plan”). The acts and their implementing regulations make participating states responsible for supervisory tasks, including the development of plans for statewide implementation of the programs, 7 U.S.C. § 2020(d); 42 U.S.C. § 1396a(a)(5), monitoring and evaluation of local agencies’ performance, 7 C.F.R. § 275.5 (2007); 42 C.F.R. § 435.903(a) (2006), and corrective action to reduce deficiencies in local administration, 7 C.F.R. §§ 275.16–.19 (2007); 42 C.F.R. § 435.903(b) (2006).

New York State conducts its food stamp and Medicaid programs on a decentralized basis through 58 local services districts—one of which is New York City—under the supervision of the Office of Temporary Disability Assistance and the Department of Health. It is undisputed that both of these state agencies took numerous steps toward improving the City’s administration of its benefits programs.
C. District Court Proceedings
On December 16, 1998 the named plaintiffs brought a putative class action under 42 U.S.C. § 1983, alleging that the city defendants deterred families and individuals from applying for food stamps, including expedited food stamps, and Medicaid benefits; failed to make separate and timely determinations as to applicants’ eligibility for Medicaid, food stamps and cash assistance; and failed to inform beneficiaries regarding the status of their applications. The complaint further asserted that state defendants’ failure to properly oversee the City’s administration of the food stamp and Medicaid programs violated plaintiffs’ rights under the respective acts and under the Due Process Clause of the Fourteenth Amendment. The district court issued a preliminary injunction in January 1999 requiring the city defendants to comply with the federal and state laws relied on by plaintiffs and enjoining the City from converting income support centers into job centers, pending the district court’s approval of a corrective plan relating to the job centers. Reynolds v. Giuliani (Reynolds I), 35 F.Supp.2d 331, 347–48 (S.D.N.Y.1999).
In May 1999 the district court approved the City’s corrective plan and modified the injunction to allow the city defendants to convert three income support centers into job centers. Reynolds v. Giuliani (Reynolds II), 43 F.Supp.2d 492, 498 (S.D.N.Y.1999). To obtain further relief from the injunction, the district court required city defendants to prepare statistical evidence showing that the improvements set forth in the corrective plan had materialized. Id.
In July 2000 the district court determined the City’s most recent evidence was incomplete and unreliable and denied its motion to vacate the injunction. *189 Reynolds v. Giuliani(Reynolds III), 118 F.Supp.2d 352, 377, 380 (S.D.N.Y.2000). In the same decision, the district court granted plaintiffs’ motion to certify as a class all New York City residents who have sought, are seeking, or will seek to apply for food stamps, Medicaid, or cash
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assistance at a job center. Id. at 392.
At this point in the litigation, plaintiffs’ action against state defendants was not being vigorously prosecuted. Before the district court issued the preliminary injunction, plaintiffs conceded that injunctive relief against the state defendants at that time would be premature. Reynolds I, 35 F.Supp.2d at 340 n. 7. Indeed, even later, in the preparation of their pre-trial memo, plaintiffs did not assert any claims against the state defendants.
As a result, the state defendants moved to dismiss the complaint against them, asserting, inter alia, that plaintiffs failed to allege facts on which relief could be granted. In Reynolds III, the district court rejected the state defendants’ arguments and denied their motion. 118 F.Supp.2d at 392. Importantly, the district court held that the state defendants were liable on a theory of non-delegable duty, under which theory the City’s violations gave rise, by operation of law, to corresponding claims against the state defendants. Id. at 386.
In February 2001 plaintiffs consented to vacatur of that portion of the preliminary injunction that stayed the conversion of income support centers into job centers. In April 2001 the district court held a bench trial at which it assessed new evidence, including the September 2000 audit. Following its memorandum opinion in February 2005, Reynolds v. Giuliani (Reynolds IV), No. 98 Civ. 8877, 2005 WL 342106 (S.D.N.Y. Feb.14, 2005), the trial court issued its final judgment on December 14, 2005 enjoining the City to comply with specified provisions of New York State law, the Food Stamp Act and the Medicaid Act and their implementing regulations. Reynolds v. Giuliani (Reynolds V), No. 98 Civ. 8877, 2005 WL 3428213 (S.D.N.Y. Dec.14, 2005). The state defendants were directed in the judgment to supervise the City’s compliance with the injunction and were assigned specific monitoring duties, such as semi-annual reviews of the City’s performance and regular reporting to plaintiffs.
The state defendants appeal the district court’s December 14, 2005 judgment.
DISCUSSION
[1] [2] Following a bench trial, we review the district court’s conclusions of law de novo and its factual findings for clear error. MacWade v. Kelly, 460 F.3d 260, 267 (2d Cir.2006). The trial court’s grant of a permanent injunction is reviewed for abuse of discretion. Kapps v.

Wing, 404 F.3d 105, 122–23 (2d Cir.2005).
I Plaintiffs’ Theories of State Liability
Following the withdrawal of the City’s appeal, state defendants declined to challenge the district court’s conclusion that the city defendants violated the Food Stamp and Medicaid Acts or to dispute its holding that certain provisions of these acts give rise to federal rights enforceable under 42 U.S.C. § 1983. In short, state defendants maintain that whatever injury plaintiffs have suffered as a result of a violation of their rights under these Acts is a subject for redress from the City of New York. Hence, the single question remaining before us is whether state defendants are liable to plaintiffs for the city defendants’ violations of the Food Stamp Act, Medicaid Act, their implementing regulations or the Due Process Clause of the Fourteenth Amendment.
As numerous theories of liability against the state have appeared in the course of *190 this litigation, we pause to clarify those sufficiently presented to warrant review. First, we note plaintiffs’ cause of action was asserted and defended on appeal under 42 U.S.C. § 1983. The district court’s description of the complaint as asserting private rights of action in a different legal context does not accord with our reading of plaintiffs’ complaint. In both its preliminary and jurisdictional statements, the complaint makes clear that plaintiffs intended to bring this action under § 1983. In their appeal brief, plaintiffs proffer no argument as to a separate vehicle for their claims, except one stray assertion that the state’s duty to supervise is enforceable outside § 1983. Accordingly, we proceed to assess the state defendants’ liability under § 1983.
The first theory proposed by plaintiffs, but never explored by the district court, was not preserved on appeal. We have already observed that the Food Stamp Act, Medicaid Act and their implementing regulations outline a state’s supervisory duties. Plaintiffs suggested in district court that these statutory provisions gave them rights to supervision enforceable against the state defendants. On appeal, however, plaintiffs made no effort to anchor liability on these supervision-specific provisions and labeled “irrelevant” appellants’ argument that 42 U.S.C. § 1396a(a)(5) does not create privately enforceable rights of action. Accordingly, we think a theory of plaintiffs having private rights of action against the state under the Food Stamp Act and the Medicaid Act has been abandoned.
A second theory plaintiffs assert to hold state defendants liable received passing attention from the district court.
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Under Monell v. Dep’t of Social Servs. of the City of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), state defendants may be liable when a state policy or custom results in the violation of plaintiffs’ federal rights. Plaintiffs maintain the state’s failure adequately to supervise city defendants is persuasive evidence of such a policy or custom.
A third theory, one which was adopted by the district court, grounds the state defendants’ liability in their non-delegable duty to ensure the welfare programs are administered in compliance with federal law. By this logic, a state may delegate day-to-day administration to local entities, but it remains legally liable to plaintiffs for any non-compliance by its delegatee. We turn now to assess the second and third theories of liability in the context of § 1983 jurisprudence.
II Liability Under Monell [3] [4] In Monell, the Supreme Court ruled for the first time that municipalities were liable under § 1983 to be sued as “persons” within the meaning of that statute, when the alleged unlawful action implemented or was executed pursuant to a governmental policy or custom. 436 U.S. at 691, 694, 98 S.Ct. 2018; see also City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Section 1983 provides in relevant part
Every person who, under color of any statute, ordinance, regulation, custom, or usage ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. In light of the statute’s legislative history and language, Monell reasoned that § 1983 rejects the imposition of vicarious liability on a municipality for the torts of its employees as incompatible with § 1983’s causation requirement. *191 436 U.S. at 691–94, 98 S.Ct. 2018; see also City of Canton, 489 U.S. at 385, 109 S.Ct. 1197 (“Respondeat superior or vicarious liability will not attach under § 1983.”); City of St. Louis v. Praprotnik, 485 U.S. 112, 122, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988); Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 125 (2d Cir.2004).
[5] An official capacity suit against a public servant is

treated as one against the governmental entity itself. Monell, 436 U.S. at 690 n. 55, 98 S.Ct. 2018; Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Thus, a state official may be sued in his or her official capacity for injunctive or other prospective relief, but only when the state itself is the moving force behind the deprivation. Graham, 473 U.S. at 166, 169, 105 S.Ct. 3099; Huminski v. Corsones, 396 F.3d 53, 70 (2d Cir.2005).
A. Applicability of Monell
Plaintiffs contend Monell’s policy or custom requirement and its concomitant bar on respondeat superior liability are not applicable to them because they seek prospective relief only. They cite Chaloux v. Killeen, 886 F.2d 247 (9th Cir.1989), which held that Monell did not govern an action for prospective relief against a county that enforced unconstitutional laws. Id. at 250. Chaloux is distinguishable from our case insofar as it dealt with a municipality’s liability for state policy—what one scholar coined “respondeat inferior liability,” David J. Barron, Why (and When) Cities Have a Stake in Enforcing the Constitution, 115 Yale L.J. 2218, 2236 (2006)—rather than a supervisor’s responsibility for the actions of subordinates. Monell did not address directly this application of vicarious liability and it is not relevant to the case at bar. See id.; see also Chaloux, 886 F.2d at 251.
[6] To the extent Chaloux proposes to exempt all claims for prospective relief from Monell’s policy or custom requirement, we are not persuaded by its logic. Monell draws no distinction between injunctive and other forms of relief and, by its own terms, requires attribution of misconduct to a municipal policy or custom in suits seeking monetary, declaratory or injunctive relief. Monell, 436 U.S. at 690, 98 S.Ct. 2018; see Dirrane v. Brookline Police Dep’t, 315 F.3d 65, 71 (1st Cir.2002); L.A. Police Protective League v. Gates, 995 F.2d 1469, 1477 (9th Cir.1993) (Fletcher, J., concurring) (“Monell ... simply holds that a municipality may not be sued at all unless the challenged conduct represents the official policy or custom of the municipality.”).
We join several of our sister circuits in adopting the view that Monell’s bar on respondeat superior liability under § 1983 applies regardless of the category of relief sought. See Gernetzke v. Kenosha Unified Sch. Dist. No. 1, 274 F.3d 464, 468 (7th Cir.2001) (stating predominant but not unanimous view that Monell’s holding applies to claims seeking injunctive relief); accord Dirrane, 315 F.3d at 71 & n. 4 (collecting cases).
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B. Failure to Supervise Claim
Municipal liability in Monell was based on the city’s affirmative conduct, that is, its official policy requiring pregnant employees to take unpaid leaves of absence before such leaves were medically necessary. 436 U.S. at 660–61, 98 S.Ct. 2018. Nonetheless, the Supreme Court has left a narrow opening for § 1983 claims like the one we address here seeking liability based not on affirmative conduct but on a government official’s failure to act. See, e.g., City of Canton, 489 U.S. at 387–92, 109 S.Ct. 1197; id. at 394–95, 109 S.Ct. 1197 (O’Connor, J., concurring in part and *192 dissenting in part) (“Where ... a claim of municipal liability is predicated upon a failure to act, the requisite degree of fault must be shown by proof of background events and circumstances which establish that the ‘policy of inaction’ is the functional equivalent of a decision by the city itself to violate the Constitution.”).
[7] Specifically, Monell’s policy or custom requirement is satisfied where a local government is faced with a pattern of misconduct and does nothing, compelling the conclusion that the local government has acquiesced in or tacitly authorized its subordinates’ unlawful actions. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989) (noting municipal liability may attach where policy maker acquiesces in longstanding practice that constitutes “standard operating procedure” of local government); Green v. City of N.Y., 465 F.3d 65, 80 (2d Cir.2006). Such a pattern, if sufficiently persistent or widespread as to acquire the force of law, may constitute a policy or custom within the meaning of Monell. 436 U.S. at 690–91, 98 S.Ct. 2018; Jeffes v. Barnes, 208 F.3d 49, 61 (2d Cir.2000); Turpin v. Mailet, 619 F.2d 196, 201 (2d Cir.1980).
It follows therefore that a government supervisor who fails to take obvious steps to prevent manifest misconduct is subject to suit under § 1983 in certain, limited circumstances. See City of Canton, 489 U.S. at 387, 109 S.Ct. 1197. In City of Canton, the Supreme Court held a city’s failure to train its subordinates satisfies the policy or custom requirement only where the need to act is so obvious, and the inadequacy of current practices so likely to result in a deprivation of federal rights, that the municipality or official can be found deliberately indifferent to the need. Id. at 390, 109 S.Ct. 1197.
[8] Although City of Canton addressed a claim of a failure to train, the stringent causation and culpability requirements set out in that case have been applied to a

broad range of supervisory liability claims. See, e.g., Amnesty, 361 F.3d at 127 (failure to supervise); Berry v. City of Detroit, 25 F.3d 1342, 1354 (6th Cir.1994) (failure to discipline). In Walker v. City of N.Y., 974 F.2d 293, 297–98 (2d Cir.1992), we outlined the requirements that must be met before a local government or official’s failure to act amounts to deliberate indifference. Plaintiffs are required to submit evidence that defendants knew to a moral certainty that the City would confront a given situation; the situation presented the City with a difficult choice or there was a history of its mishandling the situation; and the wrong choice by the City would frequently cause the deprivation of plaintiffs’ rights. Id.
Walker, which decided an appeal from a dismissal on the pleadings, is best understood as establishing the circumstances that give rise to a defendant supervisor’s duty to act or, more precisely, the circumstances under which a supervisor’s failure to act triggers liability under § 1983. See id. at 294–95, 297–98. At later stages of litigation, a plaintiff must establish also that defendant breached its duty to act by failing to make meaningful efforts to address the risk of harm to plaintiffs. See Amnesty, 361 F.3d at 129–30 & n. 10 (requiring plaintiffs to furnish evidence that training program was actually inadequate); Vann v. City of N.Y., 72 F.3d 1040, 1049 (2d Cir.1995) (allowing inference of deliberate indifference where repeated complaints are followed by no meaningful attempt to investigate or forestall incidents).
[9] Here, the state did respond to the City’s non-compliance, and so plaintiffs faced a heavy burden of proof in showing that the state’s response was so patently *193 inadequate to the task as to amount to deliberate indifference. See, e.g., Sarus v. Rotundo, 831 F.2d 397, 401 (2d Cir.1987) (requiring proof that failure to supervise was severe); Young v. City of Providence ex rel. Napolitano, 404 F.3d 4, 27 (1st Cir.2005) (“[A] training program must be quite deficient in order for the deliberate indifference standard to be met: the fact that training is imperfect or not in the precise form a plaintiff would prefer is insufficient to make such a showing.”). Such inadequacy must reflect a deliberate choice among various alternatives, rather than negligence or bureaucratic inaction. Pembaur v. Cincinnati, 475 U.S. 469, 483–84, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Further, as plaintiffs in the case at hand challenge a many-layered supervisory program spanning several years—rather than an isolated incident of non-supervision—they are required to identify with specificity the inadequacies giving rise to their claim. Cf. Amnesty, 361 F.3d at 127 n. 8, 128 (not requiring plaintiff to specify obvious supervisory deficiency based on allegation that chief passively witnessed police brutality).
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[10] Plaintiffs must prove in the end that the state defendants’ inadequate supervision actually caused or was the moving force behind the alleged violations. Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); see also City of Oklahoma v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) (plurality opinion) (requiring at minimum an “affirmative link” between policy and alleged violations); City of Canton, 489 U.S. at 391, 109 S.Ct. 1197 (“[T]he identified deficiency ... must be closely related to the ultimate injury.”); Zahrey v. Coffey, 221 F.3d 342, 350 (2d Cir.2000) (describing causation as an element that must be proved to hold a municipality liable under § 1983).
In sum, plaintiffs’ claims against state defendants are governed by Monell’ s policy or custom requirement, which obligates plaintiffs to (1) establish state defendants’ duty to act by proving they should have known their inadequate supervision was so likely to result in the alleged deprivations so as constitute deliberate indifference under Walker; (2) identify obvious and severe deficiencies in the state defendants’ supervision that reflect a purposeful rather than negligent course of action; and (3) show a causal relationship between the failure to supervise and the alleged deprivations to plaintiffs. As we explain in a moment, we do not think plaintiffs successfully discharged that obligation.
III Liability Under a Non–Delegable Duty Theory
[11] Plaintiffs maintained, and the district court agreed, the Food Stamp and Medicaid Acts imposed on participating states a non-delegable duty to administer the programs in such a manner that any state electing to operate its programs on a decentralized basis may only fulfill its statutory obligations by ensuring compliance by its local agencies. Following this logic, the district court concluded that any violations detected in the City’s administration of the programs gave rise, by operation of law, to corresponding claims against the state defendants. Reynolds III, 118 F.3d at 386.
This novel theory did not require the district court to base a finding of liability on any identified deficiencies in the state’s supervision, to find the state defendants deliberately indifferent to the citizens of New York or constructively acquiescent to the City’s misconduct, or to locate a causal link between the state’s alleged sins of omission and the alleged violations. In sidestepping Monell’s rigorous culpability and causation standards, the

district *194 court’s holding tumbled headlong into the error warned against by the Supreme Court and imposed de facto respondeat superior liability—a result rejected by Monell—on the state defendants. See City of Canton, 489 U.S. at 392, 109 S.Ct. 1197.
Plaintiffs’ attempt to justify the evasion of Monell’s rejection of vicarious liability is wholly unpersuasive. Plaintiffs neither dispute that the Food Stamp and Medicaid Acts authorize participating states to delegate the day-to-day administration of the programs, nor challenge New York State’s decision to operate on a decentralized basis. Instead, they suggest the Food Stamp and Medicaid Acts allow states to delegate only at their peril. Although plaintiffs decline to state the argument so bluntly, and speak instead in terms of “ultimate responsibility,” we understand their position to be that the statutes themselves render the states vicariously liable to plaintiffs. We see no support in the language of the Acts or our case law for the proposition that § 1983 claims arising under the Food Stamp or Medicaid Acts are exempt from the standards governing all other § 1983 claims.
As a threshold matter, plaintiffs have not provided us with any limiting principle to prevent their non-delegable duty theory from swallowing Monell whole. Neither the assertion that the state was the direct assignee of the task of administering the food stamp and Medicaid programs, nor the amorphous concept of ultimate responsibility, suffices to distinguish our case from countless others in which an employer is charged with certain duties, delegates those duties to his subordinates and remains ultimately responsible to his superiors for the performance of the delegated tasks.
Plaintiffs seek support for their position in Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir.2003), where we located a duty to supervise on the part of the state implicit in the Rehabilitation Act of 1973, § 504, 29 U.S.C. § 794. Id. at 287. Although the rationale set out in that case might lend support to plaintiffs’ non-delegable duty theory in a different context, see id. at 286–87, Henrietta D. is inapposite because it does not address § 1983 liability. Further, that case merely held that supervisory liability was a permissible basis for suit against a state and did not purport to establish a standard to govern its imposition on that basis. See id. at 287.
Both the district court and plaintiffs rely on Robertson v. Jackson, 972 F.2d 529 (4th Cir.1992), in which the Fourth Circuit affirmed an injunction ordering the state commissioner responsible for supervision of Virginia’s food stamp program to ensure compliance by local
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agencies. Id. at 532–34. Undoubtedly, Robertson provides a strong endorsement of plaintiffs’ non-delegable duty theory but, as appellants’ suggest, Robertson’s persuasiveness is greatly dampened by its complete silence on § 1983 limitations on municipal liability.
Robertson, in turn, draws significantly from cases and legislative history addressing a state’s liability, not to welfare recipients, but to the federal agency responsible for national implementation of the food stamp program. See id. at 533–34; Woods v. United States, 724 F.2d 1444, 1447–48 (9th Cir.1984) (holding state liable to United States Department of Agriculture for local violations of Food Stamp Act); California v. Block, 663 F.2d 855, 858 (9th Cir.1981); H.R.Rep. No. 95–464, at 299 (1977), as reprinted in 1977 U.S.C.C.A.N. 1704, 2235 (“The state, however, remains ultimately responsible and is the unit with which the [United States Department of Agriculture] deals.”). These sources merely imply that, by private or public arrangement, a supervisor may be held *195 responsible to his supervisor for the shortcomings of his subordinates.
The district court’s final judgment, insofar as it requires the state defendants to supervise the City without finding how the state defendants have previously failed in this duty, supplies further evidence of the earlier wrong turn in the court’s reasoning. The injunction it issued operates as a general caution to do more or do better, thereby imposing prophylactic duties on the state that may or may not be related to the deprivations at bar. See City of Canton, 489 U.S. at 395, 109 S.Ct. 1197 (O’Connor, J., concurring in part and dissenting in part). In our view neither the district court’s reasoning nor its judgment can be squared with controlling § 1983 case law.
IV State Defendants Not Liable Under Proper Legal Standard
A. Inadequate Supervision
Plaintiffs contend state defendants were deliberately indifferent under the test set out in Walker because they had knowledge of an obvious need for supervision and the risk of harm to plaintiffs. We do not decide whether plaintiffs succeed under Walker in proving state defendants had a duty to act, nor whether any hypothetical inadequacies in the state’s response can be linked to plaintiffs’ injury, because plaintiffs cannot prove the state’s supervision was patently inadequate.

[12] The district court acknowledged the state’s various measures to foster compliance by the City including reviews at each of the job centers, issuance of policy directives, and instructions to the city agency to step up its monitoring and reporting on identified areas of non-compliance. Reynolds IV, 2005 WL 342106, at *21. For example, in 2000 and 2001, the Office of Temporary Disability Assistance conducted reviews at all job centers and five income support centers in New York City. The state office reported the results of these reviews to the city agency and required it to submit quarterly reports until all outstanding issues were resolved. On the issue of separate determinations regarding an applicant’s eligibility for food stamps, the Office of Temporary Disability Assistance issued a policy directive mandating such determinations be made. When the city agency failed to comply, the office required it to investigate and address the failure, as well as submit a plan for citywide implementation of the state’s policy.
Similarly, the Department of Health, New York’s designated single state agency under the Medicaid Act, responded to plaintiffs’ allegations by issuing instructions to local districts to bring them into compliance and worked with city defendants to review and approve corrective changes. The Department of Health clarified that applicants were entitled to separate eligibility determinations for Medicaid and required the city agency to monitor referrals for such determinations.
Against this evidence of the state’s efforts, the plaintiffs note that the United States Department of Agriculture faulted New York State in November 1999 for its lack of effective oversight of the local agencies. We concur with the district court in characterizing the 1999 report as a benchmark against which the defendants’ later efforts should be measured. Id. at *10 (“[P]laintiffs’ reliance on prior reviews captures the world’s largest welfare system in a still portrait and overlooks the City defendants’ efforts toward compliance.”). Later reports from the Department of Agriculture noted efforts and improvements made by New York’s Office of Temporary and Disability Assistance, *196 while also identifying areas requiring further corrective action.
Any inadequacy that may be found in the state’s response stands in sharp contrast to the allegations of inaction and even encouragement of misconduct that provide grounds for supervisory liability in the typical case. State defendants did not sit on their hands in the face of an obvious need to act. See Bd. of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 418, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (Souter, J., dissenting). They did not,
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as did the municipal defendant in Amnesty, stand idly by, let alone encourage, the City’s non-compliance. 361 F.3d at 128; see also Jeffes, 208 F.3d at 63 (allowing inference of deliberate indifference from evidence that supervisor observed abusive incident with a smile); Bolin v. Black, 875 F.2d 1343 (8th Cir.1989); Gutierrez–Rodriguez v. Cartagena, 882 F.2d 553 (1st Cir.1989). In short, there is little evidence showing the state to be deliberately indifferent.
Nonetheless, we do not hold that any action taken by a local government insulates it from supervisory liability. If a supervisor’s steps are proven so meaningless or blatantly inadequate to the task that he may be said to be deliberately indifferent notwithstanding his nominal supervisory efforts, liability will lie. See, e.g., Vann, 72 F.3d at 1050 (reversing summary judgment against plaintiff in light of evidence that police “paid virtually no attention” to complaints relating to officers with history of abusive conduct); Ricciuti v. N.Y.C. City Transit Auth., 941 F.2d 119, 121, 124 (2d Cir.1991) (vacating dismissal on pleadings where plaintiffs alleged current training was obviously inadequate); Fiacco v. City of Rensselaer, 783 F.2d 319, 330–31 (2d Cir.1986) (finding deliberate indifference where chief of police conducted superficial investigations of citizen complaints and failed to discipline officers, record complaints or engage in any further review).
Here, however, there is no evidence to suggest that the state’s phased efforts were meaningless or obviously inadequate, except the fact of the City’s continued failure to comply with certain provisions of law. Contrary to the district court’s and plaintiffs’ suggestion, the extent of state defendants’ ultimate success in averting injury cannot be the legal measure of its efforts to do so, as such a standard is tantamount to vicarious liability. See Amnesty, 361 F.3d at 130 (“City of Canton unequivocally requires, however, that the fact-finder’s inferences of inadequate training and causation be based on more than the mere fact that the misconduct occurred in the first place.”).
Our view that state defendants’ efforts to foster compliance preclude a finding of deliberate indifference finds support in our cases and those of our sister circuits addressing claims against supervisors who tried, but failed, to prevent injury to plaintiffs. See, e.g., Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995) (rejecting § 1983 claim where defendant town had investigated complaint, notwithstanding plaintiff’s unsubstantiated assertion that town’s efforts were disingenuous); Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120, 125 (3d Cir.2003)

(dismissing failure to train claim where some police training was provided absent evidence that such training was so inadequate as to amount to deliberate indifference); Liebe v. Norton, 157 F.3d 574, 578 (8th Cir.1998) (holding that county’s deliberate efforts to prevent inmate suicides contradicted claim it was deliberately indifferent to them); Palmquist v. Selvik, 111 F.3d 1332, 1345 (7th Cir.1997) (“It is against these ‘better or more’ training scenarios that the Court warned in City of Canton.”); Davis v. City *197 of Ellensburg, 869 F.2d 1230, 1235 (9th Cir.1989) (finding no deliberate indifference where chief of police failed to remove problem police officers from active duty, but sent them to psychologist and monitored their progress).
The rationale underlying these cases is clear. A local government’s liability under § 1983 must be based on its policy or custom under Monell. Where, as here, that policy incorporates the defendants’ deliberate efforts to protect plaintiffs’ rights, it cannot, at the same time, be deemed deliberately indifferent to those rights. See Liebe, 157 F.3d at 578. A natural presumption arises in such cases that any supervisory inadequacies are the result of negligence rather than deliberate choice.
B. Policy Based on Acquiescence
Plaintiffs argue briefly that the state’s alleged acquiescence to the City’s pattern of misconduct represents an unofficial custom and thus renders the state defendants liable for suit under Monell. To the extent plaintiffs intend their unofficial custom allegation to provide a ground for liability independent of their failure to supervise claim, the former fails for the same reason we rejected the latter. State defendants took affirmative steps to investigate and correct the City’s misconduct, including specific directions to the city agency to correct incidents of non-compliance. We cannot conclude the state defendants have tacitly authorized or constructively acquiesced to violations that it has vocally and actively opposed.
C. Remand Serves No Useful Purpose
[13] The district court did not discuss state defendants’ liability under Monell. On review of a district court decision that rests on an improper legal standard and omits necessary factual and legal analysis, it is often appropriate to remand the case to the trial court for its
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Reynolds v. Giuliani, 506 F.3d 183 (2007)
reconsideration. See, e.g., Dandridge v. Williams, 397 U.S. 471, 475 n. 6, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). But if the evidence before us admits only a single resolution of the controlling issue, remanding the case serves no useful purpose. See Stetson v. Howard D. Wolf Assocs., 955 F.2d 847, 850 (2d Cir.1992) (deciding case despite trial court’s application of erroneous legal standard where facts adequately supported result); cf. Abrams v. Interco Inc., 719 F.2d 23, 28 n. 3 (2d Cir.1983) (noting that upon discovery of legal error with respect to temporary injunctions, “the appellate court ... generally will not simply remand to the district court but will act on its own”); accord Buffalo Courier–Express, Inc. v. Buffalo Evening News, Inc., 601 F.2d 48, 54, 57, 60 (2d Cir.1979) (assuming “full power to review” factual record to determine whether legal test not considered by district court was satisfied). Here, “the record permits only one resolution of the factual issue.” Pullman–Standard v. Swint, 456 U.S. 273, 292, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). As plaintiffs cannot prevail on the record before us, we bring this case, now in its ninth year, to a close by dismissing the complaint against state defendants.
V Injunction Against State Defendants Was Abuse of Discretion
Having disposed of the substantive arguments for § 1983 liability against state defendants we turn finally to the injunctive remedy the district court imposed.
[14] [15] While we recognize that a district court has broad discretion in fashioning equitable relief, such discretion is not boundless and must instead be exercised in light of governing legal principles and is subject to thorough appellate review. *198 Albemarle Paper Co. v. Moody, 422 U.S. 405, 416, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir.1986). Consequently, a grant of injunctive relief may be overturned if it is predicated, as here, on legal error. See Abrams, 719 F.2d at 28.
[16] The authority to issue an injunction is an extraordinary and powerful one that is to be used sparingly and cautiously and only in a “clear and plain” case. Rizzo v. Goode, 423 U.S. 362, 378, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Irwin v. Dixion, 50 U.S. (9 How.) 10, 33, 13 L.Ed. 25 (1850). Even greater caution is appropriate where a federal court is asked to interfere by means of injunctive relief with a state’s executive functions, a sphere in which states typically are afforded latitude. Rizzo, 423 U.S. at 378–80, 96 S.Ct. 598; see also Huffman v. Pursue, Ltd., 420 U.S. 592, 603, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975)

(requiring federal courts to “abide by standards of restraint that go well beyond those of private equity jurisprudence” when asked to enjoin state officials). As Justice Holmes said “no injunction ought to issue against officers of a State ..., unless in a case reasonably free from doubt ...” Mass. State Grange v. Benton, 272 U.S. 525, 527, 47 S.Ct. 189, 71 L.Ed. 387 (1926). In such cases, we must keep in mind the “integrity and function” of state institutions, see Knox v. Salinas, 193 F.3d 123, 129–30 (2d Cir.1999) (per curiam), as well as the delicate balance that must be maintained between a federal court’s exercise of its equitable power and a state’s administration of its own affairs, see Rizzo, 423 U.S. at 378–80, 96 S.Ct. 598. Writing for the Supreme Court in Hawks v. Hamill, 288 U.S. 52, 53 S.Ct. 240, 77 L.Ed. 610 (1933), Justice Cardozo explained
Caution and reluctance there must be in special measure where relief, if granted, is an interference by the process of injunction with the activities of state officers discharging in good faith their supposed official duties. In such circumstances this court has said that an injunction ought not to issue “unless in a case reasonably free from doubt.”... A prudent self-restraint is called for at such times if state and national functions are to be maintained in stable equilibrium.... Our process does not issue unless the path is clear. Id. at 60–61, 53 S.Ct. 240.
[17] Such federalism concerns underlie the instant litigation. Indeed, they are exacerbated by evidence of the state defendants’ efforts to improve the City’s compliance with federal law. It is often more difficult to discern a defendant’s culpability if he has acted to prevent harm than where he has failed to act at all. Plaintiffs’ claim that the state should have supervised more or differently put pressure on the district court to second guess the state’s managerial decisions and priorities, a task for which courts are ill-suited. See City of Canton, 489 U.S. at 392, 109 S.Ct. 1197.
In our view, the district court’s decision made light of these considerations, and the permanent injunction it issued against the state reveals a deficit of the caution called for by the authorities just cited. In view of state defendants’ affirmative supervisory steps, plaintiffs’ inability to show defendants were deliberately indifferent to their needs, and the district court’s reliance on a novel and untenable theory of liability, we are compelled to conclude that this case was neither clear nor plain, and certainly not reasonably free from doubt. Accordingly, the district court abused its discretion in issuing the injunction against state defendants and that portion of the injunction must be vacated.
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Reynolds v. Giuliani, 506 F.3d 183 (2007)
*199 CONCLUSION
Accordingly, for the foregoing reasons, we reverse the district court’s grant of an injunction against the state defendants, dismiss the complaint against state defendants, and strike paragraphs 2, 4, 8 and 11 from the district court’s December 14, 2005 judgment.
STRAUB, Circuit Judge, concurring in part and dissenting in part:
When the State of New York accepted federal funding under the Food Stamp Act, 7 U.S.C. §§ 2011–2036, and the Medicaid Act, 42 U.S.C. §§ 1396–1396v, it made a promise to provide residents who cannot afford to pay for food or healthcare with the means to secure these basic necessities of life. Although that promise was technically made to the federal government, it can be enforced to some extent by qualified beneficiaries, upon whom the Acts “unambiguously confer[ ][the] right” to receive food stamps and Medicaid assistance in a timely manner. See Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) (requiring such a right to support a cause of action under 42 U.S.C. § 1983). Plaintiffs were deprived of that right and thus brought this class action under 42 U.S.C. § 1983 against several governmental agencies that design and implement these programs in New York. In doing so, plaintiffs allege that the policies and practices of the New York City Human Resources Administration (“HRA”), the New York State Office of Temporary and Disability Assistance (“OTDA”), and the New York State Department of Health (“DOH”) have the effect of preventing needy New York City families and individuals from applying for, and timely receiving, the benefits to which they are entitled. Following a bench trial in April 2001, the United States District Court for the Southern District of New York (William H. Pauley, III, Judge ) granted the plaintiff class declaratory and injunctive relief as against all defendants. See Reynolds v. Giuliani, No. 98 Civ. 8877(WHP), 2005 WL 3428213 (S.D.N.Y. Dec.14, 2005). Only the commissioners of the two state agencies (“State defendants”) have maintained their appeal.
Because New York has delegated the day-to-day administration of the food stamp and Medicaid programs to local agencies such as the HRA, see N.Y. Soc. Serv. Law, art. 3, the OTDA and DOH did not directly participate in the mishandling of plaintiffs’ applications. Furthermore, plaintiffs have not shown that the State defendants promulgated policies or took other affirmative

actions that compelled the HRA to wrongfully withhold benefits. Plaintiffs’ § 1983 complaint against the State defendants is best construed as a claim, not of malfeasance, but of nonfeasance—or, more precisely, a failure to adequately train and supervise.
I concur with my colleagues that a governmental entity’s failure to properly train or supervise may serve as the basis for § 1983 liability only where that failure reflects a deliberate indifference to the rights of citizens and is closely related to the ultimate injury suffered. See City of Canton v. Harris, 489 U.S. 378, 388, 391, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). To permit claims based upon a failure to act “to go forward under § 1983 on a lesser standard of fault would result in de facto respondeat superior liability,” id. at 392, 109 S.Ct. 1197—a result that the Supreme Court has specifically rejected, see Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 693–94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Moreover, such a result would abrogate the language of § 1983, which makes clear that only a person who, under color of law, “subjects, or causes to be subjected, any citizen ... to *200 the deprivation of any rights ... shall be liable to the party injured,” 42 U.S.C. § 1983 (emphasis added); see Duchesne v. Sugarman, 566 F.2d 817, 830 (2d Cir.1977) (“The doctrine of respondeat superior is unavailable as a basis for imposing liability under § 1983; there must be some showing of personal responsibility.”). The District Court thus erred when it held the State defendants liable under § 1983 without first determining that their failure to adequately train and supervise amounted to deliberate indifference, and that such failure caused plaintiffs’ injury.
While I agree that the District Court’s judgment against the State defendants was premised on legal error, I believe that this error warrants vacatur and remand instead of reversal. As the Supreme Court has instructed, “[w]hen an appellate court discerns that a district court has failed to make a finding because of an erroneous view of the law, the usual rule is that there should be a remand for further proceedings to permit the trial court to make the missing findings.” Pullman–Standard v. Swint, 456 U.S. 273, 291, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). The only exception to this rule is when “the record permits only one resolution of the factual issue.” Id. at 292, 102 S.Ct. 1781. This exception should be construed narrowly, since “factfinding is the basic responsibility of district courts, rather than appellate courts.” DeMarco v. United States, 415 U.S. 449, 450 n. 1, 94 S.Ct. 1185, 39 L.Ed.2d 501 (1974).
Deliberate indifference and causation are fact-sensitive issues. Furthermore, the facts in this case are extensive
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and complex, filling thousands of pages of dense reports, declarations, and deposition testimony. My colleagues, perhaps swayed by a sense that this litigation has gone on long enough, have concluded that this case need not drag on longer because the record permits only one conclusion—that whatever their shortcomings, the State defendants were not deliberately indifferent to plaintiffs’ rights and did not cause plaintiffs’ injury. Because I do not view the record as so clear-cut and one-sided, I would follow the usual rule and remand for further proceedings. I therefore dissent in the result.
I.
I shall begin with the fault element of plaintiffs’ § 1983 claim. In Canton, the Supreme Court explained that a governmental entity’s “failure to provide proper training may fairly be said to represent a policy for which [it] is responsible,” where “in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of ... [citizens’] rights, that the policymakers ... can reasonably be said to have been deliberately indifferent to the need.” 489 U.S. at 390, 109 S.Ct. 1197.
We have previously distilled Canton’s explanation of deliberate indifference into three concrete requirements, which apply to inadequate training and inadequate supervision claims alike. See Walker v. City of New York, 974 F.2d 293, 297 (2d Cir.1992), cert. denied, 507 U.S. 961, 113 S.Ct. 1387, 122 L.Ed.2d 762 (1993). “First, the plaintiff must show that a policymaker knows ‘to a moral certainty’ that her employees will confront a given situation.’ ” Id. (quoting Canton, 489 U.S. at 390 n. 10, 109 S.Ct. 1197). “Second, the plaintiff must show that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation.” Id. “Finally, the plaintiff must show that the wrong choice by the ... employee will frequently cause the deprivation of a citizen’s ... rights.” Id. at 298.
*201 Citing this Court’s decision in Doe v. New York City Dep’t of Social Servs., 649 F.2d 134 (2d Cir.1981), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983), the State defendants argue that the Walker requirements should be applied more strictly in this case because their power over the local agencies “is far less than the degree of control typically found in supervisor-subordinate relationships within a single

agency or institution.” In particular, the State defendants point out that under the scheme established by the New York Social Services Law, they lack the authority to dictate the size or composition of any local agency’s staff.
In Doe, the plaintiff claimed to have suffered continuous abuse at the hands of her foster father and brought a § 1983 action against the agency charged with supervising her foster care. 649 F.2d at 136–37. The plaintiff asserted that “the agency’s failure to supervise her placement adequately and to report her situation to the New York City Department of Social Services as a suspected case of child abuse led to the continuation of her mistreatment in the home.” 649 F.2d at 137. In analyzing deliberate indifference in that context, we observed that the foster care agency’s relationship to the families it licensed differed in two key respects from the normal supervisor-subordinate relationship within a single institution. Id. at 142. First, unlike institutional administrators, who “can readily call in subordinates for consultation” and “give strict orders with reasonable assurance that their mandates will be followed,” the foster care agency “had to rely upon occasional visits for its information gathering, and its relationship to the foster family was less unequivocally hierarchical.” Id. Second, “given its goal of approximating a normal family environment for foster children,” the foster care agency understandably “felt constrained to respect the foster family’s autonomy and integrity and pressured to minimize intrusiveness.” Id. As the State defendants here emphasize, we noted that these differences tended to “suggest that deliberate indifference ought not to be inferred from a failure to act as readily as might be done in the [normal institutional] context, since in the foster care situation, there are obvious alternative explanations for a family being given the benefit of the doubt and the agency refusing to intervene.” Id.
Our analysis did not end there, however. We went on to recognize that “[i]n other cases, defendants have been ‘charged with knowledge’ of unconstitutional conditions when they persistently violated a statutory duty to inquire about such conditions and to be responsible for them.” Id. at 145 (citing United States ex rel. Larkins v. Oswald, 510 F.2d 583 (2d Cir.1975); Wright v. McMann, 460 F.2d 126 (2d Cir.1972), cert. denied, 409 U.S. 885, 93 S.Ct. 115, 34 L.Ed.2d 141 (1972)). We explained that “[t]hese cases are best understood not as imposing strict liability under section 1983 for failure to perform statutory duties, but as inferring deliberate unconcern for plaintiffs’ welfare from a pattern of omissions revealing deliberate inattention to specific duties imposed for the purpose of safeguarding plaintiffs from abuse.” Id.; see also Duchesne, 566 F.2d at 832 n. 31. The foster care agency had “a strict duty,”
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Reynolds v. Giuliani, 506 F.3d 183 (2007)
imposed on it by state law, “to report all suspected cases of child abuse to the Department of Social Services.” Doe, 649 F.2d at 145. We determined that if the agency persistently failed to carry out that statutory duty, it could be held liable under § 1983, notwithstanding its imperfect knowledge of the situation and limited control over the foster family. See id. at 146.
A state is free not to participate in the “scheme of cooperative federalism” established under the Food Stamp and Medicaid *202 Acts, but if it decides to join, “it must comply with federal requirements if it is to assure the continued availability to it of federal funds to defray a part of the total expense of assisting its needy citizens.” Rothstein v. Wyman, 467 F.2d 226, 232 (2d Cir.1972), cert. denied, 411 U.S. 921, 93 S.Ct. 1552, 36 L.Ed.2d 315 (1973) (internal quotation marks omitted). The Acts impose a number of specific, binding obligations on participating states for the benefit of applicants. For instance, the Food Stamp Act provides that each state, inter alia:
(1) “shall provide timely, accurate, and fair service to applicants for, and participants in, the food stamp program,” 7 U.S.C. § 2020(e)(2)(B)(i);
(2) “shall permit an applicant household to apply to participate in the program on the same day that the household first contacts a food stamp office in person during office hours,” id. § 2020(e)(2)(B)(iii);
(3) “shall consider an application that contains the name, address, and signature of the applicant to be filed on the date the applicant submits the application,” id. § 2020(e)(2)(B)(iv);
(4) “shall thereafter promptly determine the eligibility of each applicant household by way of verification of income ... so as to complete certification of and provide an allotment retroactive to the period of application to any eligible household not later than thirty days following its filing of an application,” id. § 2020(e)(3); and
(5) “shall ... provide coupons no later than 7 days after the date of application to any household which [qualifies for expedited food stamp service],” id. § 2020(e)(9)(A).
The Medicaid Act similarly mandates that a state’s plan for medical assistance “provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.” 42 U.S.C. § 1396a(a)(8).

Both Acts permit a participating state to delegate the administration of the assistance programs to local agencies. See 7 U.S.C. § 2012(n)(1) (Food Stamp Act); 42 U.S.C. § 1396a(a)(1) (Medicaid Act). However, “[a] state that chooses to operate its program[s] through local, semi-autonomous social service agencies cannot thereby diminish the obligation to which the state, as a state, has committed itself, namely, compliance with federal requirements governing the provision of the ... benefits that are funded by the federal government.” Robertson v. Jackson, 972 F.2d 529, 534 (4th Cir.1992), cited in Henrietta D. v. Bloomberg, 331 F.3d 261, 286–87 (2d Cir.2003), cert. denied, 541 U.S. 936, 124 S.Ct. 1658, 158 L.Ed.2d 356 (2004).1 *203 In other words, although administrative duties may be passed down, “ultimate responsibility for compliance with federal requirements nevertheless remains at the state level.” Robertson, 972 F.2d at 533 (internal quotation marks omitted).

1

In Henrietta D., we considered the scope of a state

agency’s liability under another Spending Clause

legislation—the Rehabilitation Act of 1973, 29 U.S.C.

§ 794, et seq. Observing that “Spending Clause

legislation is ‘much in the nature of a contract,’ ” we

looked to general principles of contract law to

determine the proper remedy. 331 F.3d at 285 (quoting

Barnes v. Gorman, 536 U.S. 181, 186, 122 S.Ct. 2097,

153 L.Ed.2d 230 (2002)). Applying these principles, we

determined that the State of New York—like any

obligor that promises performance in exchange for

consideration—was “liable to guarantee that those it

[had] delegate[d] to carry out its programs satisf[ied]

the terms of its promised performance, including

compliance with the Rehabilitation Act.” Id. at 286. We

also noted that “[a] number of non-Second Circuit cases

... seem to take the view that the state’s assumption of

liability under [other Spending Clause legislation such

as] the Food Stamp and Medicaid Acts renders it liable

for violations of those acts by local agencies.” Id.

(citing, inter alia, Robertson, 972 F.2d at 534).

Consistent with those cases, we held that the

Commissioner of the New York State Department of

Social Services was subject to supervisory liability for

localities’ non-compliance with the Rehabilitation Act.

Id. at 287. We declined to decide “what factual

showing would adequately establish an actionable

failure to supervise,” however, as the issue was not

squarely presented. Id.

Here, plaintiffs chose 42 U.S.C. § 1983 as the

statutory vehicle to enforce their rights to food

stamps and Medicaid assistance. Therefore, we need

not decide whether a cause of action exists against

the State defendants directly under the Food Stamp

and Medicaid Acts, or what standard of fault, if any,

would apply to such a hypothetical claim. Section

1983, which sounds in tort rather than contract, see

City of Monterey v. Del Monte Dunes at Monterey,

Ltd., 526 U.S. 687, 709–10, 119 S.Ct. 1624, 143

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L.Ed.2d 882 (1999), demands some showing of fault, and where the claim alleges a failure to train or supervise, the requisite standard is deliberate indifference. See Canton, 489 U.S. at 388, 109 S.Ct. 1197.

To discharge this ultimate responsibility, a state that chooses to delegate administrative duties to local agencies must, at the very least, provide those agencies with adequate guidance on the proper procedures for

determining eligibility so that qualified applicants receive the assistance they need in a timely manner. See 7 U.S.C. § 2020(e)(2)(A) (“[T]he State agency shall establish procedures governing the operation of food stamp offices that the State agency determines best serve households in the State....”); 7 C.F.R. § 272.3(a) (“State agencies shall

prepare and provide to staff responsible for administering the Program written operating procedures.”); see also 42

U.S.C. § 1396a(a)(4)(B) (specifying that the state plan for medical assistance must provide “for the training and effective use of paid subprofessional staff ... in the administration of the plan”).2

2

HRA submits its proposed local procedures, relating to

policy matters as well as operational issues such as

computer support, to the DOH for review and sign-off.

The OTDA likewise has the authority to disapprove of

local rules and procedures.

In addition, the state must conduct regular reviews of the local agencies to ensure that the correct procedures are being followed and that the rights of eligible beneficiaries are not being violated. See 7 C.F.R. § 275.5 (requiring the state agency in charge of the food stamp program to conduct Management Evaluation reviews “to measure compliance with the provisions” of Food and Nutrition Service regulations); see also 42 C.F.R. § 435.903(a) (mandating that the state agency charged with overseeing the Medicaid program “[h]ave methods to keep itself currently informed of the adherence of local agencies to the State plan provisions and the agency’s procedures for determining eligibility”). If deficiencies are discovered, the state must promptly formulate a corrective action plan to address them, and then undertake follow-up measures to ensure that the plan is fully implemented and the identified deficiencies cured. See 7 C.F.R. § 275.16(c) (providing that the state agency in charge of the food stamp program “shall ensure that appropriate corrective action is taken on all deficiencies including each case found to be in error by quality control reviews and those deficiencies requiring corrective action only at the project area level”); id. § 275.18(b) (stating that “[p]roject area/management unit corrective action plans shall

contain all the information necessary to enable the State agency to monitor and evaluate the corrective action properly”); id. § 275.19(b) (directing the state agency to “ensure that corrective action on all deficiencies identified *204 in the State Corrective Action Plan and Project Area/Management Unit Corrective Action Plan is implemented and achieves the anticipated results within the specified time frames”); see also 42 C.F.R. § 435.903(b) (requiring that the state agency responsible for the Medicaid program “[t]ake corrective action to ensure [the local agencies’] adherence [to the state plan provisions and the agency’s procedures for determining eligibility]”).
As detailed in the following sections, there is evidence in this record indicating that, despite a long history and alarmingly high rate of HRA staff mishandling food stamp and Medicaid applications following the implementation of the Personal Responsibility and Work Opportunity Reconciliation Act (“PRWORA”), Pub.L. 104–193, 110 Stat. 2105 (1996), the State defendants continually failed to provide the training and supervision needed to remedy systemic problems. To point to two examples in particular, the record contains evidence that the State defendants: (A) failed to provide adequate guidance regarding the proper method of processing applications, so as to ensure that applicants’ eligibility for food stamps and Medicaid benefits was determined separately from their eligibility for cash assistance; and (B) failed to adequately review the local agencies and monitor the success of corrective action plans. Although the State defendants cannot be held liable under § 1983 merely for not living up to its statutory obligations, Doe teaches that evidence of a pattern of inattention to statutory duties can support an inference of deliberate indifference. 649 F.2d at 145–46. I would therefore remand to allow the fact finder to decide whether that inference should be drawn here.
A.
As the District Court aptly described it, PRWORA “represent[ed] a legislative sea change in thinking about welfare.” Reynolds v. Giuliani, 35 F.Supp.2d 331, 347 (S.D.N.Y.1999). Among other things, PRWORA eliminated the Aid to Families with Dependent Children program and replaced it with a new cash assistance program called Temporary Assistance to Needy Families (“TANF”). A central purpose of TANF, as articulated in the statute itself, is to “end the dependence of needy parents on government benefits by promoting job preparation, work, and marriage.” 42 U.S.C. § 601(a)(2).
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Reynolds v. Giuliani, 506 F.3d 183 (2007)
Consistent with that purpose, PRWORA provides that a participating state must “[r]equire a parent or caretaker receiving assistance under the program to engage in work (as defined by the State) once the State determines the parent or caretaker is ready to engage in work, or once the parent or caretaker has received assistance under the program for 24 months (whether or not consecutive), whichever is earlier....” 42 U.S.C. § 602(a)(1)(A)(ii); see also id. § 607 (describing mandatory work requirements).
In response to the PRWORA, HRA began converting its “Income Support Centers” into new “Job Centers” in March of 1998. The conversion encompassed much more than switching the sign above the buildings; it entailed a complete overhaul of the application and eligibility determination procedures. Prior to PRWORA, any individual seeking public assistance was provided with a state-approved joint application form for food stamps, Medicaid, and cash assistance. Once the individual completed the application, the application specialist registered the applicant and scheduled an appointment for a full application interview for five to seven days later, or in emergency need cases, for that same day. See Reynolds, 35 F.Supp.2d at 335. After PRWORA, the state must first determine that the individual seeking cash assistance *205 is exempt from work activities or ready to engage in work. If the individual is ready to work, then he or she must immediately be assigned job search activities and placed on the path towards gainful employment. See id. at 335–36. These new requirements apply only to cash assistance and do not affect the eligibility standards or statutorily-prescribed time frames for providing food stamps or Medicaid. Hence, as a result of PRWORA, cash assistance had to be delinked from food stamps and Medicaid.
The Welfare Management System (“WMS”) is a code-driven computer system used to process and track applications at the local centers. Before PRWORA, when an individual applied for cash assistance, WMS automatically enrolled the applicant for a food stamp and/or Medicaid eligibility determination. In an effort to implement PRWORA, the system was changed to require a cash assistance worker to affirmatively input a code into WMS to indicate when an individual is also applying for food stamps or Medicaid, thereby signaling the need for a separate determination. If the cash assistance worker uses the incorrect code and cash assistance is later denied, the application is never reviewed for food stamp and Medicaid eligibility, and it is impossible to detect this error through WMS. Furthermore, even if the cash assistance worker uses the correct code, the denial of cash assistance requires that the entire application be closed in WMS. For a separate determination on food stamp and

Medicaid eligibility to be made, the cash assistance worker must make a copy of the application and forward it to the food stamp or Medicaid specialist, who is most likely located in a different office. The specialist must then reenter the information and re-register the application using the original filing date.
In January 1999, the District Court found that the staff at the new Job Centers were denying applicants food stamps and Medicaid benefits for failing to comply with PRWORA’s work rules. See id. at 346. The District Court preliminarily enjoined the HRA from converting any more Income Support Centers into Job Centers pending approval of an adequate corrective plan, which was to include, inter alia, “[p]rocedures for processing applications for food stamps and/or Medicaid where applicants fail to comply with work requirements.” Id. at 348.
Although a corrective action plan was approved in May 1999, see Reynolds v. Giuliani, 43 F.Supp.2d 492 (S.D.N.Y.1999), a November 1999 review by the United States Department of Agriculture (“USDA”) confirmed that there was still a “serious program deficiency” relating to separate determinations. The HRA’s program evaluation of Job Centers and Income Support Centers for the period November 1999 to June 2000 revealed that 96% of cases requiring a separate determination for food stamps were not prepared for transfer to the food stamp office, and that 86% of cases requiring a separate determination for Medicaid did not have a copy of the correct referral form. An audit performed in September 2000 showed that the Job Centers were making separate food stamp and Medicaid determinations “only about 14 percent of the time.” Reynolds, 2005 WL 342106, at *20.
Against this backdrop, a fact finder could conclude that the State defendants knew to a “moral certainty” that HRA employees were often entering the wrong code and not referring applications for separate determinations—choices that frequently resulted in the deprivation of beneficiaries’ rights. See Walker, 974 F.2d at 297–98. Despite the urgency of this problem, it appears that as of 2001, when the *206 trial in this case was held, no effort had been made to remedy these problematic aspects of WMS. The February 2001 deposition testimony of Betty Rice, a director within DOH’s Office of Medicaid Management, is revealing. When asked whether it was the case that WMS “closes the application [when cash assistance is denied] and that the Medicaid application has to be re-registered with the original filing date,” Rice replied: “I am not denying that.” When asked whether DOH had a plan to change that feature of WMS, Rice answered: “No, it does not.” Later in the deposition,
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Rice was questioned about how an applicant who has been denied cash assistance for a reason that requires a separate Medicaid determination can tell whether the necessary referral has been made. Rice responded: “[I]f a person is supposed to have a separate determination, they would be notified on their notice that they are to have a separate determination, and a prudent person I think could determine if in a reasonable amount of time they didn’t get a determination about the separate determination that maybe something was wrong and they should look into that.” When pressed about what would happen if an applicant were to inquire and discover that the referral had not been made, Rice stated that “one would expect that [the Medicaid application] would go back to the date that the case should have been referred for the separate determination.” However, Rice also admitted that DOH’s instructions “may be silent on the issue.”
As Judge Cardamone points out, the State defendants did take some measures after the initiation of this lawsuit to foster compliance by the HRA. See Reynolds, 2005 WL 342106, at *21. As I read Canton, however, the operative question is not whether the State defendants provided any training at all, but whether the State defendants ignored an obvious “need for more or different training” in light of the duties assigned to the HRA. 489 U.S. at 390, 109 S.Ct. 1197 (emphasis added). In my view, a reasonable fact finder could conclude, based upon the above evidence, that the State defendants failed to respond to such a need for more training and corrective action relating to separate determinations, despite their knowledge that the inadequacy would continue to result in violations of beneficiaries’ rights. This evidence counsels remand.
B.
The record also contains evidence indicating that the State defendants “persistently violated [their] statutory duty to inquire about ... conditions” at the new Job Centers “and to be responsible for them.” Doe, 649 F.2d at 145. Given the significance of PRWORA’s reforms, one might have expected the State defendants to step up their supervision efforts to ensure that the implementation of those reforms did not affect eligible beneficiaries’ access to food stamps and Medicaid. In its November 1998 review, the USDA discovered exactly the opposite situation—a “lack of effective state agency oversight over the local district offices.” Reynolds, 2005 WL 342106, at * 12. The USDA found that due to the OTDA’s inadequate supervision, “[s]ubstantial non-compliance with the [Food Stamp Act] and regulations had gone undetected and unaddressed at

the local level.” Id. As for the DOH, it acknowledged before the District Court that it did not even know about the HRA’s intention to convert the Income Support Centers into Job Centers until early 1998, and did not learn of the complaints regarding the inappropriate denials, withdrawals, and deterrence of Medicaid applications until plaintiffs filed this lawsuit in December 1998. See id. at * 14. As Betty Rice put it: “[T]he first we understood that *207 there was a problem were [sic] when things came to light in the newspaper articles.”
As noted, in January 1999 the District Court preliminarily enjoined the HRA from further converting its Income Support Centers into Job Centers, finding that the HRA’s administration of the food stamp and Medicaid programs at the Job Centers did not comport with legal standards. Two years later, however, the DOH still had not conducted any on-site reviews of the Job Centers in New York City. The preliminary injunction did prompt the OTDA to conduct reviews of the Job Centers in 2000 and 2001. But as the District Court pointed out in its post-trial order, “reviews were not conducted at regular intervals, and OTDA has no policy regarding how much time may elapse between those reviews.” Id. at *12. Rosella Bryson, a senior OTDA official, was questioned about the agency’s schedule for future reviews during her February 2001 deposition. She speculated that “with the current schedule we have,” it would take about three years to complete a round of Management Evaluation reviews—i.e., that each site would receive a review about once every three years.
Perhaps more important than conducting regular reviews is following up on reviews to make sure that problems are corrected. There is evidence to suggest that even when the reviews uncovered serious deficiencies, the OTDA made little effort to ensure that corrective action plans were properly implemented. For example, Bryson recounted that during a review of the Waverly Job Center, the OTDA found that personnel were not having discussions with applicants about food stamp eligibility after cash assistance applications were withdrawn. Despite the severity of the problem, the OTDA did not investigate or evaluate the center’s implementation of a corrective action plan for more than a year afterwards. Bryson also acknowledged that the OTDA does not provide written instructions to its staff on how to conduct a corrective action plan review, nor do supervisors discuss any particular center with staff prior to the review. Only one OTDA staff member is assigned to a center, and each visit lasts one and a half days. In that short time, the OTDA staff member reviews just five cases and speaks only to the center director. And although the OTDA makes findings based on the corrective action plan review, the
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Reynolds v. Giuliani, 506 F.3d 183 (2007)
HRA is not required to take any action in response to those findings.
I believe that the above evidence could “constitute[ ] incremental documentation of a pervasive pattern of indifference” on the part of the State defendants. Doe, 649 F.2d at 146. I would remand to allow the District Court to decide whether it does.
II.
Demonstrating that a governmental entity was deliberately indifferent to citizens’ rights is not enough to hold it liable under § 1983; the plaintiffs “must still prove that the deficiency in training [or supervision] actually caused” their injury. Canton, 489 U.S. at 391, 109 S.Ct. 1197. In other words, the plaintiffs must “prove that the deprivation occurred as a result of a [governmental] policy rather than as a result of isolated misconduct by a single actor.” Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 130 (2d Cir.2004).
The District Court found that the Job Centers were, inter alia: (A) improperly denying applicants expedited food stamps about 57.33 to 67 percent of the time, Reynolds, 2005 WL 342106, at *7; (B) making separate food stamp determinations when denying cash assistance applications only sporadically, and making separate Medicaid determinations less than 11 *208 percent of the time, id. at *8; and (C) causing applicants to withdraw applications based on misleading information, which accounted for 45 percent of food stamp application withdrawals and 56 percent of Medicaid withdrawals, id. These statistics suggest that the programs’ deficiencies resulted from more than the actions of a few rogue employees. Instead such problems arguably implicate the very policies and practices of the HRA, which the State defendants are responsible for overseeing and correcting.
As Canton instructs, the proper inquiry in addressing the causation issue is as follows: Would plaintiffs’ injury have been avoided if the HRA had been trained or supervised under a program that was not deficient in the respects identified above? 489 U.S. at 391, 109 S.Ct. 1197. “Predicting how a hypothetically well-trained [and well-supervised] officer would have acted under the circumstances may not be an easy task,” but it is one that the “judge and jury, doing their respective jobs, will be adequate to” address. Id. In my view, there is sufficient evidence to present a triable issue on causation. I would therefore let the question go to the District Court, which is intimately familiar with the facts in this case and is more

than adequate to the task.
III.
In closing, I reiterate that my aim has not been to show that the State defendants must, or should, be held liable under § 1983, but merely to demonstrate that the record does not foreclose a possible finding of liability by the District Court under the correct legal standards. Granted, six years have passed since the trial, so the existing record may be too stale to support the reentry of a permanent injunction. But whether new evidence should be received is a matter for the District Court to decide, as are the factual issues of deliberate indifference and causation. Because I believe that the record permits more than one resolution of these issues, I would remand.
WALLACE, Circuit Judge, concurring in the judgment:
As Judge Cardamone correctly points out in his opinion, Monell v. Department of Social Services bars indirect liability section 1983 claims against state officials. 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see also Poe v. Leonard, 282 F.3d 123, 140 (2d Cir.2002) (“A supervisor may not be held liable under section 1983 merely because his subordinate committed a constitutional tort”). I agree with Judge Cardamone that the district court erred by awarding a judgment in the appellees’ favor on these claims, and reversal is required.
I recognize along with Judge Cardamone and Judge Straub that, apart from the bar on respondeat superior liability under section 1983, this court has held that “a supervisor may be found liable for his deliberate indifference to the rights of others.” Poe, 282 F.3d at 140. The analysis of Judge Cardamone persuades me, but that issue is not properly before us and we need not pursue it. First, the appellees failed to allege either in their complaint or in the pretrial order that the State appellants acted with deliberate indifference or gross negligence. Second, the district court never made findings to this end. Third, until prompted to do so, the appellees did not address these issues and even tried to distinguish City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), the case on which the deliberate indifference analysis depends. Finally, the deliberate indifference approach fails to provide a coherent account of the district court’s disposition of the *209 various claims in the complaint. It strikes me that we cannot review a case on appeal that was not tried in the district court, and I would not now permit appellees to correct on
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Reynolds v. Giuliani, 506 F.3d 183 (2007)
appeal strategic mistakes that they made in the trial court; the issue is forfeited and Monell ends the game. Under these circumstances, I conclude there is no reason to remand and allow appellees to start over with a new game

plan.

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