(dissenting) :
Under the same standard we applied in Gulf & Western Industries, Inc. v. Great Atlantic & Pacific Tea Company, Inc., 476 F.2d 687, 692-93 (2 Cir. 1973), in there affirming Judge Duffy’s order granting a preliminary injunction, I think Judge Duffy’s order in the instant ease granting a preliminary injunction likewise should be affirmed.
Turning directly to the central issue upon which the majority opinion turns, with deference I believe that plaintiffs have demonstrated that their due process claim presents substantial constitutional questions — ones which, at the very least, may fairly be said to be “serious questions going to the merits which warrant further investigation and trial.” Gulf & Western, supra, 476 F.2d at 692-93, and authorities there cited. In my view, the due process clause requires better notice than was provided here. The notice given by the state was not timely, did not adequately explain the rights of the recipients, and was not the most effective available method of notice.
The jurisdictional underpinning for this action therefore was provided by the Civil Rights Act, 42 U.S.C. § 1983 (1970), and its jurisdictional implementation, 28 U.S.C. § 1343(3) (1970). It follows that there is pendent jurisdiction over the statutory claims.
Defendants certainly have not complied with 45 C.F.R. § 205.10 (1973) which requires that each claimant be given an opportunity for a fair hearing before the state agency if he feels aggrieved by agency policy as it affects his situation. The same regulation requires that notice be mailed at least fifteen days before action is taken by the agency. Clearly the notice sent to the day care recipients via the day care centers did not comport with that requirement. Moreover, the action of defendants in terminating funding to the centers is “agency policy” directly affecting *409the recipients. Thus, the fair hearing requirements of the regulation are here applicable.
The deficiencies of Form DSS 2105 are evident from a reading of the Social Security Act and the regulations promulgated thereunder. By failing to provide a deduction for work-related expenses in calculating net earned income for the purpose of determining eligibility, Form DSS 2105 clearly does not meet the requirements of 42 U.S.C. § 602(a)(7) (1970). An examination of 42 U.S.C. § 622(a)(1)(C) (iii) and (iv) (1970) indicates that § 602(a)(7) and not § 622 is the controlling provision as to financial eligibility regardless of the nature of the welfare program.
Finally, it seems to me that the affirmation at the end of Form DSS 2105 conflicts with 45 C.F.R. §§ 205.20(a)(3) and 206.10(a)(12)(iii)(a) (1973). The affirmation certainly appears to require the applicant for benefits to grant in advance a blank consent to all investigations regarding eligibility. By contrast, the regulations require that the state proceed on a step by step basis, informing the applicant at each stage as to what information is desired, why it is desired, and how it will be used. I think that Judge Duffy acted clearly in accordance with the law in requiring that the form be revised to comply with the regulations.
In short, plaintiffs demonstrated a probability of success on the merits and, upon a balancing of the relative hardships to the parties, that irreparable injury would be sustained by the recipients in terms of loss of jobs and training if day care services were terminated during the pendency of this action. Furthermore, in balancing the equities, we should not lose sight of the strong public interest considerations which impelled Judge Duffy to grant the preliminary injunction. We have held such considerations to be paramount. Gulf & Western, supra, 476 F.2d at 698-99.
I would affirm the order and judgment of the district court in all respects.