Application for stay of mandate and judgment, holding certain
procedures of the Illinois Department of Public Aid inconsistent
with Department of Health, Education, and Welfare regulations,
pending this Court's action on writ of certiorari granted June 11,
1973, denied as to those portions of judgment that apply
prospectively only and granted as to paragraphs 5 and 6 thereof. If
paragraph 5, directing that lump-sum payments be made retroactively
to welfare applicants, is not stayed, petitioner would likely be
unable to recover funds paid out, but respondent recipient would be
able, if he prevails, to collect all back payments found to be due.
The District Judge thought paragraph 6 could be complied with in a
period of 15 days, and given the length of time already consumed by
appellate review in this case, the addition of two weeks following
this Court's decision is not of controlling significance in
deciding the application for stay.
See: 472 F.2d 985.
MR. JUSTICE REHNQUIST, Circuit Justice.
Application has been made to me by petitioner Edelman to stay
the mandate and judgment of the Court of Appeals for the Seventh
Circuit pending review of that judgment by this Court on writ of
certiorari. Certiorari was granted on June 11, 1973, 412 U.S. 937,
and therefore the critical question present in most stay
applications -- whether or not four Justices of this Court would
vote to grant certiorari -- is here already resolved. The
judgment
Page 414 U. S. 1302
which is to be reviewed affirmed a District Court judgment
holding certain procedures of the Illinois Department of Public Aid
to be inconsistent with regulations promulgated by the Department
of Health, Education, and Welfare, and therefore invalid to the
extent that the State was receiving federal funds for this
particular welfare program. Portions of the District Court's
judgment, entered on March 15, 1972, are, in their application,
prospective only, but paragraph 5 directs that lump-sum payments be
made retroactively to applicants who, in the view of the District
Court and of the Court of Appeals, should have received benefits
but did not because of the Illinois procedures held invalid.
Paragraph 6 of the judgment directs that petitioner's predecessor
within 15 days from its date submit to the Court a detailed
statement as to the method for effectuating the relief required by
paragraph 5.
I seriously doubt whether certiorari would have been granted in
this case had it not been for the presence of paragraphs 5 and 6 in
the judgment of the District Court. While the entire judgment will
be before this Court for review, I am inclined to think that four
Justices of this Court would not have voted to grant certiorari to
review those portions of the judgment which are, in their effect,
prospective only. I therefore deny the application for the stay of
the mandate and judgment of the Court of Appeals as to those
portions of the District Court's judgment other than paragraphs 5
and 6.
Insofar as paragraphs 5 and 6 of the judgment are concerned, the
decision of the Court of Appeals for the Seventh Circuit in this
case conflicts with a judgment of the Court of Appeals for the
Second Circuit in
Rothstein v. Wyman, 467 F.2d 226 (1972).
If paragraph 5 of the judgment is not stayed, I would think it
extremely unlikely that petitioner, should he succeed in this
Court, would be able to recover funds paid out under
Page 414 U. S. 1303
that paragraph to respondent welfare recipient and members of
the class he represents. Respondent, on the other hand, will be
able to collect from petitioner all of the back payments found due
under paragraph 5 should he prevail. A substantial legal question
being present, these equities lead me to conclude that paragraph 5
should be stayed.
Respondent argues that, even though paragraph 5 be stayed,
paragraph 6 should be left in effect pending review here. The late
Judge Napoli, however, in framing paragraph 6, apparently thought
that it could be complied with in a period of 15 days; given the
length of time already consumed by appellate review in this case,
the addition of another two weeks following a conclusion by this
Court favorable to respondent is not a matter of controlling
significance in deciding the application for the stay. It is also
conceivable that paragraph 5 of the judgment, with its detailed
specifications as to dates, might be modified by this Court on
appeal. Thus, the procedures developed under paragraph 6 might
prove to be entirely useless, and a new set of procedure
necessitated, not only on the hypothesis of outright reversal by
this Court, but on the hypothesis of modification and
affirmance.
On the basis of the foregoing considerations, an order will be
entered staying paragraphs 5 and 6 of the judgment of the District
Court in this case until further order of this Court.