Opinion
4694-18
04-22-2019
In the Matter of the Application of Joseph GOYER, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. Samuel D. ROBERTS, as Commissioner of the New York State Office of Temporary and Disability Assistance ; and Denis Sheehan, as Director of the New York State Supplement Program, Respondents.
Legal Aid Society of Northeastern New York, Inc., Attorneys for Petitioner, By: Michael J. Telfer, Esq., of Counsel, 95 Central Avenue, Albany, New York 12206 Letitia A. James, Esq., New York State Attorney General, Attorney for Respondent, (By: Kyle W. Sturgess, Assistant Attorney General), The Capitol, Albany, New York 12224-0341
Legal Aid Society of Northeastern New York, Inc., Attorneys for Petitioner, By: Michael J. Telfer, Esq., of Counsel, 95 Central Avenue, Albany, New York 12206
Letitia A. James, Esq., New York State Attorney General, Attorney for Respondent, (By: Kyle W. Sturgess, Assistant Attorney General), The Capitol, Albany, New York 12224-0341
David A. Weinstein, J.
In this hybrid Article 78 petition and declaratory judgment action, petitioner Joseph Goyer seeks the vacatur of fair hearing decision No.7568149N, denying him retroactive State Supplemental Program ("SSP") benefits of $87 per month for the four months between August and November 2015, and as well as declaratory relief, costs and attorneys' fees. The case is one of three raising similar issues which are the subject of opinions I issue today, the other two being Torres v. Roberts , No. 5889-18 and Sherwood v. Roberts , No. 904631-18. The petition names as respondents former Office of Temporary and Disability Assistance ("OTDA" or the "Agency") Commissioner Samuel D. Roberts, and OTDA's SSP Director Denis Sheehan.
According to the OTDA website, Roberts no longer serves as Commissioner, and Michael Hein is now the Acting OTDA Commissioner. Given that Sheehan is also a named defendant, a substitution of parties is not necessary in order to ensure that the relief ordered below is effectuated. Nevertheless, since Roberts was named personally, albeit in his official capacity, a substitution of parties is necessary in regard to any future proceedings in this case (see CPLR 1019, 1023 ). This may be addressed by stipulation as provided for in the decretal paragraphs below.
Background
I. The SSP Program and its Governing Regulations
Under federal law, disabled individuals who meet the requisite qualifications are entitled to receive monthly Social Security Disability Insurance ("SSD") benefits paid by the Social Security Administration ("SSA") under Tittle II of the Social Security Act. An individual can receive SSD only if he or she became insured by working and paying into the Social Security system for a certain period of time (Oral Argument Transcript ["Tr"] 7-8). The SSA also provides Supplemental Security Income ("SSI") benefits to individuals who are blind, aged or disabled, and whose income falls within particular limits (Petition ["Pet"] ¶ 10). Once an applicant is judged eligible for SSD benefits, he or she must await the conclusion of a five-month waiting period before benefits are provided (id. ¶ 7).
When a person receives both SSD and SSI benefits, the law provides for them to be offset against one another to reduce the total amount (see Pet ¶ 12).
States have the option to augment federal SSI and SSD benefits, and by regulation New York has created the State Supplemental Program ("SSP"), which gives additional benefits to those who are eligible for SSI, or would have been eligible except that they exceed the income cap (see 18 NYCRR 398-1.1 ). No separate application for SSP is necessary; an application for federal SSI benefits is deemed a concurrent application for the state benefits (see 18 NYCRR 398-4.1 [a] ). To be eligible for SSP, an individual must among other things have "monthly countable income less than the State standard of need," as defined in the Social Services Law (see 18 NYCRR 398-4.2 [a][3] ). An individual's eligibility for SSP is determined "on the basis of the data supplied by the Federal SSA through the State Data Exchange ["SDX" or the "Exchange"], information provided by the applicant or recipient pursuant to subpart 398-5 of this Title, and other information available to the Office" ( 18 NYCRR 398-4.3 ).
Until October 1, 2014, the federal SSA administered the New York SSP program by agreement with the State (Pet ¶ 16). At that time, New York took over the program, although SSA continued to administer retroactive SSP payments until October 1, 2015 (id. ¶¶ 16-17). Under the regulations governing SSP, the disability determinations of SSA are binding upon OTDA, notwithstanding the State's administration of the program (see 18 NYCRR 398-2.1 [v] & 398-4.3).
The structure of the SSP program outlined above can result in the following scenario: By the time an applicant has been deemed eligible for SSI by the SSA — and potentially eligible for SSP — his or her income has been augmented by SSD benefits, which place him past the income cap for state benefits. Thus, the only period during which that individual may be within the income threshold for SSP is the five-month waiting period for SSD — a period that has already passed by the time eligibility is established.
II. The Case of Mr. Goyer
The petition now before me sets forth the following allegations: Petitioner Joseph Goyer applied for SSI and SSD on July 9, 2015, which under the applicable regulations constituted a concurrent application for SSP benefits to OTDA (see Pet ¶ 61). On March 7, 2017, an SSA administrative law judge ("ALJ") awarded Goyer benefits, finding that he was disabled as of May 19, 2015 (id. ¶ 63). Those benefits were subject to the five-month waiting period, which lasted from June through October 2015. Goyer was thus given SSD benefits retroactively to November 2015 (id. ¶ 66).
On May 11, 2017, petitioner received two letters from the State SSP program. The first said that Goyer was "currently in receipt of benefits" under the program and asked that he complete an appended form (Pet, Ex P). The second stated that Goyer's "total SSP countable monthly income exceed[ed] the maximum benefit amount for [his] living arrangement" (Pet, Ex Q). It found him ineligible for SSP benefits, a finding "based on Regulations at 18 NYCRR Part 398.4.2 (a)" (id. ). That regulation sets out the requirements for SSP, under which the applicant must:
Goyer's only income at the time appears to have been his SSD benefits (Pet Mem at 6).
"(1) be aged, blind or disabled in accordance with the requirements of this Part and Title XVI of the Federal Social Security Act ... ;
(2) be in receipt of Federal SSI benefits or be eligible to receive SSI benefits except for reasons of income;
(3) have monthly countable income less than the State standard of need as set forth in section 209 of the Social Services Law ; and
(4) be living in New York State with the intention of making his or her home in New York State, but is not required to maintain a permanent residence or fixed address...."
On June 8, 2017, Goyer's counsel provided the completed form that had been sent with the initial letter regarding SSP, along with a request that the denial of benefits be reversed and a copy of Fair Hearing Decision #7393498J (Pet ¶ 72). That decision (which is appended to the present petitioner as Ex H) reversed and found "not correct" an administrative determination denying an applicant retroactive SSP benefits.
This decision is summarized further below.
The SSP program responded to Goyer's counsel via email dated June 27, 2017 as follows:
"Mr. Goyer first applied for federal SSI benefits in the Summer of 2015. The [SSA] provided data via the SDX to SSP relative to Mr. Goyer's eligibility for federal SSI benefits for the first time on May 11, 2017 at which time Mr. Goyer was noted to be ineligible for federal SSI benefits due to being over income. The income data provided by SSA via the SDX to SSP on May 11, 2017 further noted that Mr. Goyer's income was above the State benefit rate level, and as such Mr. Goyer was ineligible for SSP.
Consequently, and notwithstanding any prior period of alleged eligibility for federal SSI benefits pending a determination of eligibility for federal disability benefits, State regulations provide that the SSP shall not pay retroactive SSP benefit [sic] on behalf of an individual or couple who was not initially determined eligible for SSP benefits by this Office upon the basis of the data supplied by the federal SSA through the SDX" (Pet ¶ 74).
Goyer requested a fair hearing. At the hearing, the SSP Program did not appear but provided a written submission stating in part: "notwithstanding any prior period of alleged eligibility for SSP benefits for which such benefits were not paid, this Office will not pay any retroactive SSP benefit on behalf of an individual or couple who was not initially determined eligible for SSP benefits by this Office upon the basis of the data supplied by the federal SSA through SDX" (see Pet, Ex R at 1). The submission cited language in 18 NYCRR 398-11.3, which provides in regard to correcting an underpayment of benefits that "no payment will be made to an individual or couple who is ineligible to receive SSP ...." (id. ). For his part, Goyer testified and offered two fair hearing decisions (discussed further below) that appear at odds with the SSP's position.
A decision on the fair hearing was issued on March 26, 2018, and signed by an individual identified as "Commissioner's Designee" (the "Designee"). The decision noted that Goyer's attorney did not dispute the determination that he was not eligible for SSP benefits except retroactively for June through October 2015 (Pet, Ex U at 2). The Designee upheld the administrative denial of SSP benefits as "correct," because at the time the determination was made Goyer was no longer eligible for such benefits, and therefore could not obtain them retroactively.
The present petition followed. Along with the pleading, petitioner submits nine fair hearing decisions which he claims are at odds with the Designee's ruling here. These decisions may be summarized as follows:
Hearing #6914195J - The Designee upheld the Agency's decision to discontinue applicant's benefits because the applicant's countable income exceeded her SSP needs, but found the decision not to award retroactive benefits "not correct," and directed the Agency to "review the Applicant's eligibility for SSP benefits for this period and determine eligibility" (Pet, Ex G).
In most of these hearings, the applicant is referred to as "Appellant" presumably because he or she is appealing the initial administrative determination. For the sake of consistency and clarity, I will stick to the term "applicant."
Hearing #7393498J - The Designee found the Agency's position that the applicant was not entitled to retroactive benefits because she was not then eligible for SSP was "not correct and is reversed," and the Agency was directed to pay the applicant benefits "for which she would have been eligible" during the four-month retroactive period (Pet, Ex H).
Hearing #7461565Z - The Designee rejected the Agency's position that it "will not pay retroactive SSP benefits on behalf of an individual or couple who was not initially determined eligible for SSP benefits by this Office upon the basis of the data supplied by the Federal SSA through the SDX, holding that the Agency "must provide [him] with any SSP benefits for which he would have been eligible" during the retroactive period (Pet, Ex I).
Hearing #770990Q - Although the applicant did not contest that he was then ineligible for SSP benefits due to income, it found that the Agency's view that he was not entitled to retroactive benefits "cannot be sustained," and directed the Agency to evaluate the applicant's eligibility for SSP benefits for the retroactive period "considering the subsequent SSA determination that [she] was eligible for SSI for these months," and to "provide her with any assistance owed in accordance with verified degree of need" (Pet, Ex J).
Hearing #7633723Q - The Designee found the Agency's determination not to award retroactive benefits was "incorrect" and was "reversed," rejecting its argument that no retroactive payment could be made to an individual ineligible at that time for SSP, and directing the Agency to determine applicant's eligibility for benefits during the retroactive period and to "provide [her] with SSP benefits for those [retroactive] months" if she was "determined eligible" (Pet, Ex K).
Hearing #7536612N - The Decision rejected the Agency's construction of 18 NYCRR 398-11.3 as limiting SSP benefits to those not "ineligible" at time of determination, on ground that it applied to "correcting an underpayment" not an "initial eligibility determination," and therefore the Agency's determination that the applicant was not eligible for SSP benefits during the retroactive period "cannot now be sustained" (Pet, Ex L).
This decision is the one at issue in Sherwood , as to which a companion opinion is issued today.
Hearing #7575488P - Since documentation showed that the applicant was eligible for SSP benefits retroactively, the Agency's decision that the appellant could not receive retroactive benefits was "not correct" and "reversed," and OTDA was directed to "provide [her] with SSP benefits" for the period at issue (Pet, Ex M).
Hearing #7644497K - While applicant's attorney did not dispute the lack of present eligibility for SSP benefits due to income, the Decision found that the Agency's reliance on 18 NYCRR 398-11.3 was "misplaced," as it had not been established that [applicant] was ineligible for SSP benefits or that any other reason exists for denying retroactive benefits," and therefore if the applicant was determined eligible for the retroactive period, the Agency must "provide benefits consistent with a verified degree of need" (Pet, Ex N).
This decision is the one at issue in Torres , as to which a companion opinion is also issued today.
Hearing #7654451J - Although applicant acknowledged lack of eligibility for present benefits, the Agency's position that he was not eligible for retroactive benefits "cannot be sustained," and was "not correct," and the Agency was directed to "re-evaluate" applicant's eligibility for such benefits (Pet, Ex O).
In sum, all of these decisions explicitly rejected the position advanced by the Agency in this case, that present ineligibility for SSP bars an individual from obtaining retroactive benefits. Six of these decisions preceded the contrary result Goyer's hearing decision.
In opposition to the petition, respondents submit Sheehan's affidavit and a memorandum of law. In Sheehan's description of the SSP program, he notes in particular that OTDA relies for its eligibility determinations on information received from the SSA in the SDX datafile (Sheehan Aff ¶ 7). The Exchange provides OTDA with the names of those who (1) receive SSI; and (2) would be eligible for SSI except that their income is above the Federal Benefit Rate (id. ). Sheehan states that while those in the first category are eligible for SSP, the latter may not be depending on whether their income meets New York's "Standard of Need," an amount higher than the Federal Benefit Rate (id. ¶ 7 & n 1). According to Sheehan, New York does not receive data on individuals who may have been eligible for SSI in the past, but are not now eligible or were determined to be eligible retroactive SSI benefits due to a successful federal administrative appeal (id. ¶ 11). Thus, "if an individual ... is found to be eligible for SSI benefits with respect to some prior period of time — resulting in the SSA providing for a retroactive award of SSI benefits — that individual ... is deemed eligible for a retroactive SSP payment only to the extent that they are currently eligible for ongoing SSP benefits" (id. ¶ 15).
Because the data received from the SSA does not allow the Agency to determine retroactive eligibility, Sheehan contends that a reading of the regulations along the lines urged by petitioner (i.e., to allow for retroactive benefits) would entail "significant structural costs upon the operation of the SSP program" (id. ¶ 19). In addition, he asserts that such retroactive payment of benefits would be of little benefit to the recipients, since the majority of retroactive payments are "actually recovered (in whole or in part) by the local social service districts for State-funded temporary assistance benefits provided while the recipients awaited his or her SSA determination" (id. ¶ 20).
As a legal matter, respondents' position is that SSP benefits may not be paid retroactively to individuals who were initially eligible for SSI, but are no longer when the application is ripe for determination (id. ¶ 15; Resp Mem of Law at 8-9). Sheehan asserts generally that State policy in this regard "has been consistent since October 2014" (Sheehan Aff ¶ 17). This "consistently-applied" policy, respondents contend, is entitled to the Court's deference (Resp Mem at 9).
Sheehan also argues that retroactive payments are inconsistent with the goal of the SSP program to "help with current and ongoing needs " in light of the finite amount of tax revenue that there is to spend on such benefits (Sheehan Aff ¶ 18 [emphasis in original] ).
In addition to the parties' written submissions, on December 14, 2018, oral argument was conducted in this case and in two companion Article 78 petitions.
Discussion
I. Article 78
In an Article 78 proceeding, this Court may overturn an administrative determination only if it "was arbitrary and capricious, lacked a rational basis or was affected by an error of law" (Matter of Abramoski v. New York State Educ. Dept. , 134 AD3d 1183, 1185 [3d Dept 2015], lv dismissed and denied 27 NY3d 1044 [2016] ). Petitioner's basic argument is that the Agency's denial of his application for retroactive SSP benefits was arbitrary and capricious because it departed from numerous other Fair Hearing Decisions which decided just the opposite.
An administrative decision is arbitrary and capricious when the agency "neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts" ( Matter of Lantry v. State of New York , 6 NY3d 49, 58 [2005], quoting Matter of Charles A. Field Delivery Service Inc. , 66 NY2d 516, 518 [1985] ["Charles A. Field Delivery "] ). The failure to adhere to prior administrative precedent absent such explanation "require[s] reversal" ( Charles A. Field Delivery , 66 NY2d at 520 ).
This case presents an entirely unique (not to say bizarre) field for application of these principles. The typical case in which the rule articulated in Charles A. Field Delivery is applied concerns an agency's issuance of contradictory rulings in what are alleged to be comparable circumstances — i.e., one person is granted a benefit while another similarly situated is denied it. The question presented by such cases is whether the circumstances are distinguishable, or in the event of a change in policy, whether the Agency has adequately explained the shift (see e.g. Claim of Martin , 70 NY2d 679 [1987] [agency's decision on whether individual was employee or independent contractor arbitrary and capricious given its failure to distinguish comparable case reaching different result] ). Here, there is something new: two sets of decision-makers within the same agency adopt diametrically opposite constructions of its own regulations, and the Agency contends that one of those interpretations is authoritative policy, while essentially pretending that the other does not exist.
Specifically, in nine fair heating decisions presented in the petition, the designee of the Commissioner, who is vested by regulation to make authoritative rulings which the Agency is bound to follow, found that the governing regulations provide for retroactive payment of SSP benefits. In their written submission, respondents insist that their reading to the contrary has been OTDA's "consistent" interpretation since 2014, simply ignoring the fact that respondent Roberts' own designee has repeatedly found to the contrary.
See 18 NYCRR 358-6.1 [emphasis added] [OTDA regulations provide that "[u]pon issuance, the [fair hearing] decision is final and binding upon social services agencies and must be complied with"] ).
Respondents sole response to the voluminous record of administrative rulings at odds with OTDA's ostensible policy is the statement in a footnote that "estoppel may not be invoked to compel a government agency to rescind its policy, in order to create a right not otherwise existing" (Resp Mem at 13 n 2). But that misses the point entirely. The questions begged by the contrary line of administrative rulings are: (1) whether the ruling against Goyer here reflects an unexplained and inconsistent departure from other determinations, and is therefore arbitrary and capricious; and (2) whether the regulatory construction advanced by respondents is entitled to deference as they assert, notwithstanding that others within their own agency have adopted the opposite view.
The answer to the first question is: "yes." When an agency "makes a determination that is contrary to its prior decisions on similar facts, it must set forth a rational explanation for doing so or such determinations will be deemed arbitrary and capricious" ( Huff v. Department of Corrections , 52 AD3d 1003, 1004 [3d Dept 2008] ). As noted, respondents' written submission provides no explanation as to why the outcome in this case was different from the other fair hearings, nor has OTDA explained whether or why there was a change in position. To the contrary, after Goyer's case, numerous other hearing officers returned to the prior interpretation.
To be clear, this is not a case where the agency head has acted to rationalize contrary positions, or the Commissioner has resolved an internal dispute through an internal appeal mechanism. Rather, the Commissioner's designees repeatedly issued binding decisions (except in this case) with one interpretation of the regulations, and then other Agency officials adopted a different interpretation in declining to follow those decisions (see Tr 37 [retroactive benefits only paid in one instance after applicant prevailed following fair hearing] ).
At oral argument, respondents' counsel noted that the fair hearing decision at issue distinguished one of the prior determinations Goyer placed in the record at that proceeding, and "implicitly" found the other to be "erroneous" because it relied on a different construction of the governing regulation (Tr 44). The portion of the Fair Hearing Decision relied on for the former point was as follows: "Fair Hearing Determination (FH#7393498J) ... is distinguishable here as the SSA awarded retroactive SSI to the Appellant covering the month in which Agency had issued its Notice of Intent to deny SSP benefits but in this case the SSA did not award retroactive SSI for the month of May 2017 as they notated $0.00 for that month and thereafter" (Ex U at 9). Whatever exactly this means, it does not address the finding in the earlier Hearing Decision that the Agency's bar on retroactive benefits was "not correct." And while it is true that the decision in Goyer's case "implicitly" rejected the view of the earlier decision, that is exactly the point. Something "implicit" is "unexpressed" (see www.merriam-webster.com/dictionary/implicit). In other words, the decision at issue adopted a different reading of the regulation than that applied in the prior (and subsequent) hearings, without setting forth any explanation for the change — the very definition provided by Huff for an arbitrary and capricious act.
As to the second question — whether the interpretation of the regulation adopted by respondents here is entitled to deference — the answer is "no." Indisputably, it is a "basic tenet of administrative law" that courts should defer to an agency's interpretation of its own regulations ( Andryeyeva v. New York Health Care, Inc. , ––– NY3d ––––, 2019 NY Slip Op 02258 [2019] ). But here, there are two such interpretations. OTDA offers no explanation as to why one interpretation adopted by certain agency personnel should be given deference as the expression of agency expertise, while the other should be ignored. I see no basis for deference in such circumstance.
Faced simply with the plain language of the regulation, and two competing interpretations thereof, I find that the interpretation articulated in the nine fair hearing decisions provided with the petition to clearly be the better reading.
Even assuming that some deference is required here, "[a]n agency's interpretation of its regulations must be upheld unless the determination is ‘irrational and unreasonable’ " (Matter of Marzec v. DeBuono , 95 NY2d 262, 266 [2000] ; see also Matter of Northern Metro. Residential Healthcare Facility, Inc. v. Novello , 72 AD3d 1383, 1386 [3d Dept 2010] [upholding agency's determination as based on a "rational interpretation" of its regulations] ). For reasons set forth above, I find that the Agency construction in this case would run afoul of this standard, since the regulation upon which it is based is, for reasons set forth below, inapplicable here.
The premise of respondents' argument is that Goyer is seeking to fix an underpayment, and therefore it must apply 18 NYCRR 398-11.3. But by its terms that regulation applies when "payment issued is less than the correct amount of SSP ... benefits," and thus the Agency must "correct the underpayment." That is not what occurred here. Goyer was never "issued" any payment, much less a sum "less than the correct amount." His application did not entail any adjustment to an amount already paid or awarded, but rather retroactive payment of benefits, defined specifically by regulation as "payments issued after the calendar month during which the SSPNA or SSP recipient was eligible for such benefits" ( 18 NYCRR 398-2.1 [ab] ).
This interpretation is precisely that adopted by the Commissioner's designee in Fair Hearing Decision 7536612N (appended as exhibit L and at issue in Sherwood ): "[t]he regulation relied on by the Agency concerns correction of an underpayment of SSP benefits [but] [t]his case concerns making an initial eligibility determination based upon the [applicant's] original application for SSP ...." Once this conclusion is reached, respondents' construction — which is based entirely on reading a present eligibility requirement in the underpayment regulation — evaporates.
The Agency's reading, moreover, is impossible to square with other aspects of the governing regulations, which define eligibility as vesting at the time of the application, not the time of decision or payment. Thus, an individual applying for SSI benefits is "deemed to have concurrently filed for SSP benefits" ( 18 NYCRR 398-4.1 [a] ) and eligibility for such benefits "begins on the SSI application effective date" ( 18 NYCRR 398-4.1 [c] ). That date is defined by regulation as "the first day of the month following the later of the date the SSI application is filed; or the individual becomes eligible for such benefits" ( 18 NYCRR 398-2.1 [al] ). Such benefits are "payable as of the month that SSI payments begin" ( 18 NYCRR 398-4.1 [d] ). In short, the regulations provide a date for both eligibility and payment that is tied to the time of the application, not to date of the Agency's subsequent decision.
Respondents' interpretation makes the "eligibility" provisions of the regulation a phantom. By their reading, on the very date that eligibility was established, it also disappeared;. The upshot of the fair hearing decision in this case is that at the same time Goyer became "eligible" for benefits in retrospect, he also ceased being eligible, and thus could never collect on those benefits. Such a reading that precludes an individual from receiving benefits during a period for which the same regulations define him as "eligible," because of the date on which that eligibility was determined, is arbitrary and irrational (see Seittelman v. Sabol , 91 NY2d 618, 627 [1998] [striking down regulation because it "arbitrarily penalizes eligible claimants"] ).
OTDA seeks to rebut this conclusion with various policy arguments. It contends that it lacks the global ability to assess the retroactive eligibility of applicants for SSP, and that any requirement that it to do would impose significant expense upon the Agency (see Sheehan Aff ¶ 19). But that is not an issue in this case , since respondents acknowledge that the information necessary for such an eligibility determination was available to them for the present petitioner (see Tr 18 ["Once the person identifies themselves, the agency does have the capability to make the determination of retroactive eligibility"]; Tr 15 ["It's not that it's a complicated determination when they're sitting here right now with individuals who are bringing lawsuits [but it's] a complicated determination with respect to all the individuals who are out there that may have prevailed in Fair Hearings that we don't know about"] ). Thus, OTDA's argument boils down to the claim that even if Goyer is personally eligible for SSP benefits, he should not receive them because in other circumstances, the agency lacks the ability to determine such eligibility administratively. I cannot see how broader technical or cost issues should limit Goyer's right to receive any benefits to which he is otherwise entitled.
Along the same lines, respondents argue that OTDA's refusal to pay retroactive benefits is consistent with its regulations, which provide that the Office is "bound by the decision and action taken by SSA on the SSI eligibility determination" ( 18 NYCRR 398-4.3 ). But the same regulation makes clear that the Agency is not restricted to the information it receives from SSA; rather, it states that eligibility for SSP should be determined not only on the information obtained from the Data Exchange, but also on information provided by the applicant and "other information available to the Office." Thus, on the face of the regulatory language, OTDA need not rely solely on SSA data in making an eligibility determination, and respondents make no argument that the evidence in the fair hearing record is insufficient to establish retroactive eligibility.
OTDA also argues that the decision not to pay retroactive benefits is a "policy determination" based on what it deems to be the optimal allocation of resources (Tr 16-17). As noted, it also says that retroactive payments will be of little benefit, since such payments will often be taken to recompense local social service districts for money they have laid out on applicants' behalf. Be that as it may, if the Agency believes its governing regulations do not provide for the correct allocation of resources, the appropriate way to address such an issue is to amend them, to the extent that such amendment is permissible by law. OTDA cannot simply toss aside the language of its own regulations when it sees fit to do so.
Finally, there is the question of remedy: OTDA contends that mandamus is not an appropriate remedy in this case, since the regulation is at best unclear, and thus it is within the agency's discretion to set policy on the payment of SSP (Tr 47-48). It therefore argues that if the petition is granted, remand for further consideration would be the appropriate outcome, and not a directive to issue benefits (id. ).
An Article 78 petition may be brought to seek the remedy of mandamus, that is, to compel an agency "to perform a duty enjoined upon it by law" ( CPLR 7803[1] ). Mandamus, however, "applies only to acts that are ministerial in nature and not those that involve the exercise of discretion" (Matter of Maron v. Silver , 14 NY2d 230, 249 [2010]). Thus, to be entitled to mandamus, petitioner must show "a clear legal right to the relief demanded" and "a corresponding discretionary duty on the part of the agency to grant that relief" ( Matter of Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs. , 77 NY2d 753, 757 [1991] ).
I find mandamus to be an appropriate remedy here. While Designee determined that Goyer was not entitled to SSP benefits, that was based on the view that retroactive payments were impermissible — a construction I reject for reasons stated above. Therefore, all that remains to be done here are the ministerial acts of calculating and paying the amount of retroactive SSP benefits Goyer is owed.
II. Declaratory Judgment
Petitioner also asks the Court to enter a declaratory judgment, inter alia that Goyer was entitled to the retroactive benefits at issue.
A trial court may decline to issue a declaratory judgment when "other adequate remedies are available, such as a CPLR article 78 proceeding to challenge an administrative determination." Gable Transport, Inc. v. State , 29 AD3d 1125, [3d Dept 2006] [citations omitted] ). Thus, proceeding on an Article 78 may make the declaratory relief "duplicative and unnecessary" ( Yarde v. Roberts , 60 Misc 3d 686, 695 [Sup Ct, Albany County 2017] ). Here, the only thing at stake for this petitioner is the retroactive payments of benefits; there is no dispute regarding the payment of benefits going forward. Given the relief granted above, which addresses the only live dispute between Goyer and OTDA, there is no need for further declaratory relief (see id. [denying declaratory judgment as unnecessary after granting petition annulling denial of certain OTDA benefits] ).
The petition alleges that respondent Sheehan "has engaged in a systemic misapplication of 18 NYCRR 398-11.3 by repeatedly failing to pay individuals, including Mr. Goyer, retroactive SSP benefits in a manner that lacks a rational basis and is arbitrary, capricious and contrary to state law, and regulations, including OTDA's own fair hearing decisions" (Pet ¶ 85). To the extent Goyer seeks declaratory relief addressing other comparable cases, that would be inappropriate here. This proceeding is not brought as a class action, and I have no authority to make rulings on matters not before me. Of course, the Court's rulings here may be relevant to other matters, but that does not entitle petitioner to seek a declaratory judgment on behalf of parties not present.
III. Attorneys' Fees, Costs and Disbursements
Under CPLR 8601, the Court may award fees in an action against the State, unless the State respondents can show that its position was "substantially justified." To meet this standard, the Agency's arguments must have been "justified to a degree that could satisfy a reasonable person [or having a] reasonable basis both in law and in fact" ( Scibilia v. Regan , 199 AD2d 736, 737 [3d Dept 1993] [citation and internal quotation marks omitted] ). An agency's position may meet this standard even if it is ultimately determined to be incorrect (id. ). Nevertheless, the government has the burden of showing substantial justification, and it must make a "strong showing" justifying its position ( Barnett v. New York State Dept. of Social Services , 212 AD2d 696, 697-98 [2d Dept 1995] ). Moreover, any unreasonable position adopted by the State in its litigation "automatically opens the door" to a fee award ( New York State Clinical Laboratory Ass'n, Inc. v. Kaladjian , 85 NY2d 346, 357 [1995] ).
Respondents have not met that burden here. Petitioner made ample showing of the arbitrary nature of the position taken by the Agency, pointing to nine decisions that reached the opposite result on the proper interpretation on the same regulatory language. Respondents essentially ignored these arguments, baldly asserting the consistency of their policy in the face of such contrary evidence. The defense of a manifestly inconsistent position on the conclusory invocation of consistency cannot be called substantially justified. The fact that respondents were defending the decision of the hearing officer in this case does not compel a different result (see Matter of Perez v. New York State Dept. of Labor , 259 AD2d 161 [3d Dept 1999] [fees granted in petitioner overturning hearing officer's ruling] ).
Petitioner is therefore entitled to fees. I further award costs and disbursements to petitioner under Articles 81 and 83, which it may recover as the prevailing party (see CPLR 8101 ).
* * *
In sum, for the reasons set forth above, it is ORDERED that the petition is GRANTED to the extent it is brought under CPLR Article 78, and the matter is remanded to the Agency for respondents to provide SSP benefits to petitioner for the months between August and November 2015 solely based on his eligibility at that time and without regard to whether or not he is presently eligible for benefits within 30 days of service upon it of this Decision & Order; and it is further
ORDERED that Petitioner is awarded costs, disbursements and attorneys' fees, and within 30 days of this Decision & Order shall present the Court with its fee application, including an appropriate accounting of time spent, what it believes to be proper billing rates for comparable work, and a bill of costs; and it is further
ORDERED that Respondents may, if they wish, submit any objections to the amount of fees, costs and disbursements sought within 20 days thereafter; and it is further
ORDERED that the parties shall submit an appropriate stipulation within ten days of the date of this Decision & Order amending the caption so as to substitute in the proper defendant for former Commissioner Roberts; and it is further
ORDERED that the petitioners' declaratory judgment action is dismissed.
This shall constitute the Decision & Judgment of the Court. This Decision & Judgment is being transmitted to petitioner for filing. The signing of this Decision and Order, and delivery of a copy thereof shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.
SO ORDERED AND ADJUDGED.
Papers Considered:
1. Petitioner's Notice of Verified Petition, dated July 18, 2018, with Exhibits A through U annexed thereto;
2. Petitioner's Memorandum of Law, dated July 18, 2019;
3. Respondent Denis Sheehan's Affidavit in Opposition, dated October 22, 2018, with Exhibits A through C annexed thereto;
4. Respondent's Answer, dated October 23, 2019;
5. Respondent's Memorandum of Law in Opposition, dated October 23, 2018;
6. Administrative Record containing hearing transcript, dated November 10, 2018; and
7. Respondent's submission containing redacted records, dated December 21, 2018.