APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 79-0986)
Before Rosenn, Garth and Sloviter, Circuit Judges.
The Department of Public Welfare of Pennsylvania (hereinafter DPW), the agency which administers that state's Social Security Act program of Aid to Families with Dependent Children (hereinafter AFDC), 42 U.S.C. §§ 601 et seq. (1976 & Supp. II 1978), has a policy which bars duplicate payments of AFDC benefits on behalf of a child who has moved to the home of another relative. Plaintiff filed suit against Helen O'Bannon, Secretary of the Department of Public Welfare of Pennsylvania, and Don Jose Stovall, Executive Director of the Philadelphia County Board of Assistance, claiming that this policy violates the Social Security Act, federal regulations issued thereunder, and the equal protection and due process clauses of the United States Constitution.*fn1 This is an appeal from the order of the district court granting summary judgment on behalf of defendants. We will affirm that judgment for the reasons set forth below.
Until the latter part of February, 1979, five year old Tarik Jackson lived in Philadelphia with his mother, Robin Jackson, who at that time was receiving AFDC benefits for herself and her four children. Tarik's father, Wayne Jackson, maintained a separate residence. Shortly before the events in question, Mr. Jackson's unemployment benefits terminated. Thereafter, on February 21, 1979, Tarik moved to his father's home. Mr. Jackson, who would not otherwise have qualified for AFDC benefits,*fn2 applied for those benefits on March 1, 1979, requesting a grant for himself as the caretaker parent and for Tarik as a dependent child. To confirm the change in Tarik's living arrangements, Mr. Jackson presented to the Welfare Department a notarized statement of Mrs. Jackson stating that on February 21, 1979 she had given Mr. Jackson "full custody of their son." Mr. Jackson was determined eligible for AFDC benefits for himself effective March 1, 1979. His grant at that time was not increased to include benefits on behalf of Tarik because Tarik's benefits had already been paid to his mother on February 27, 1979.*fn3 Pennsylvania's benefits are paid twice a month, prospectively for the coming period.
On the next semimonthly payment date, March 13, 1979, Tarik's grant of $51.00 was sent to his mother rather than his father, because DPW was complying with a requirement imposed judicially and by federal and state regulations that a recipient be given at least ten days' prior notice of an adverse action, which includes removal of a child's benefit. DPW sent the required notification of its intended termination of benefits for Tarik to Mrs. Jackson the day after it received initial notice of the change from Mr. Jackson. On March 28, 1979, DPW terminated the payment of benefits to Tarik's mother and, as of that same date, Mr. Jackson was paid the AFDC benefits on Tarik's behalf.*fn4
Mr. Jackson claims that notwithstanding Pennsylvania's payment of Tarik's benefits to his mother, the state was bound to award him a grant on Tarik's behalf as of March 1, 1979, when he gave the state notice of Tarik's change in custody. It is the Pennsylvania policy precluding such duplicate payment which is the subject of the challenge in this lawsuit.
DPW concedes that it has a policy which prohibits duplicate payments on behalf of a child who is the subject of a change in custodial relative. That policy stems in part from a Pennsylvania regulation that provides no person may be a member of more than one AFDC grant group, Pa.Code tit. 55, § 171.21(b). Pennsylvania apparently considers children eligible for AFDC as one grant group with their custodial relative. Therefore, under Pennsylvania's policy, until Tarik could be removed from his mother's grant group, he could not be added to his father's grant group.
In order to consider the parties' respective contentions that the Pennsylvania policy either conflicts with or is consistent with the Social Security Act and its regulations, it is necessary to consider the structure of the AFDC program. It was succinctly described in King v. Smith, 392 U.S. 309, 316-17, 88 S. Ct. 2128, 2132-33, 20 L. Ed. 2d 1118 (1968), and Shea v. Vialpando, 416 U.S. 251, 253-54, 94 S. Ct. 1746, 1750, 40 L. Ed. 2d 120 (1974); the history behind some of the relevant provisions is discussed in King v. Smith, 392 U.S. at 320-26, 88 S. Ct. at 2134-2138. Under the Social Security Act, the federal government provides matching funds to assist participating states in providing financial assistance to needy dependent children and the parents or relatives who live with and care for them. States which desire to take advantage of such federal funds must submit AFDC plans in conformity with the Act and the regulations promulgated thereunder by the Department of Health, Education, and Welfare. The program is, however, administered by the states, which are given broad discretion in determining both the standard of need and the level of benefits. Shea v. Vialpando, 416 U.S. at 253, 94 S. Ct. at 1750.
HEW regulations require that each AFDC plan must specify a statewide standard of need, which is the amount deemed necessary by that state to maintain a hypothetical family at a subsistence level. Both eligibility for AFDC assistance and the amount of benefits to be granted an individual applicant must be based on a comparison of the state's standard of need with the income and resources available to that applicant, 45 C.F.R. § 233.20(a)(2)(i) (1979).
Each party to this dispute cites different sections of the Social Security Act and regulations issued thereunder in support of its position. Plaintiff relies primarily on 42 U.S.C. § 602(a)(7) (1976), and 45 C.F.R. §§ 233.20(a)(3)(ii)(D) and 233.90(a) (1979). The section of the Social Security Act he refers to provides, in relevant part:
(a) . . . A State plan for aid and services to needy families with children must . . .
(7) . . . provide that the State agency shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children . . . .
42 U.S.C. § 602(a)(7) (1976).
Under the regulations implementing this statutory section, it is required that:
(a) . . . A State Plan . . . must . . .
((3))(ii) Provide that, in determining need and the amount of the assistance payment, . . .
(D) Net income available for current use and currently available resources shall be considered; income and resources are considered available both when actually available and when the applicant . . . has a legal interest in a liquidated sum and has the legal ability to make such sum available for support. . . .
45 C.F.R. § 233.20(a)(3)(ii)(D) (1979). Another regulation provides:
In establishing financial eligibility and the amount of the assistance payment, only such net income as is actually available for current use on a regular basis will be considered, and the income only of the parent (legally obligated to support the child under state law) will be considered available for children in the household in the absence of proof of actual contributions (.)
Plaintiff stresses that these provisions manifest that one of the fundamental principles of the AFDC program is that eligibility for assistance and the payment of benefits are to be based upon actually available income. He claims that DPW knew that he had no income with which to support Tarik, and that at a conference before the district court on plaintiff's request for a Temporary Restraining Order, held on March 19, 1979, Tarik's mother advised the court that she no longer had the $51.00 she had received as assistance for Tarik on March 13, 1979. Therefore, he concludes, DPW's refusal to provide a grant for Mr. Jackson to meet Tarik's needs deprived him of income for approximately a month, in violation of the state's responsibility under the Act and regulations.
Plaintiff relies on a series of Supreme Court cases which held that state statutes and regulations which presumed income was available to an AFDC recipient that was not actually available conflicted with the Social Security Act and the regulations promulgated pursuant thereto. In King v. Smith, supra, the Court voided an Alabama regulation which regarded an able-bodied man with whom the mother cohabited as a "parent", thereby depriving the child of AFDC eligibility on that basis alone. In Lewis v. Martin, 397 U.S. 552, 90 S. Ct. 1282, 25 L. Ed. 2d 561 (1970), the Court held that California could not presume that income of a non-adoptive stepfather or a man assuming the role of a spouse was available to a child. In Van Lare v. Hurley, 421 U.S. 338, 95 S. Ct. 1741, 44 L. Ed. 2d 208 (1975), the Court reached a similar decision with regard to New York regulations authorizing a reduction in AFDC shelter allowance when non-rentpaying lodgers resided in the home.
According to plaintiff, Pennsylvania's regulation makes the impermissible presumption that Tarik's mother, the former caretaker relative, is providing for his support with the funds received. Since, plaintiff continues, the funds were not in fact available to Tarik, the line of cases referred to above forbids that presumption.
Defendants, for their part, direct our attention to the statutory provision which requires that "aid to families with dependent children shall . . . be furnished with reasonable promptness to all eligible individuals," 42 U.S.C. § 602(a)(10) (1976). They claim, and the district court found, that defendants met their statutory obligation by furnishing assistance to Tarik with reasonable promptness. Defendants were first notified of the change in Tarik's living arrangements on March 1, 1979. The payment dates for AFDC checks for both households, those of Robin Jackson and Wayne Jackson, were March 13 and March 28, 1979. Defendants were obliged, as a requirement of due process and the applicable federal and state regulations, to give Robin Jackson ten days' notice before her grant could be reduced.*fn5 Although she might have signed a waiver of that notice or consented to the action, she did not do so. Because checks are mailed a day in advance of the payment date, any changes in an assistance check must be made no less than two days before the date the check is due to be received. Therefore, defendants could not have processed the notice, waited the ten days, and effected the change in both checks by the March 13 payment date. Accordingly, they argue, March 28, 1979 was the earliest date by which the change could realistically be made, and that was in fact the date by which it was accomplished.
Defendants contend that their action is consistent with the federal regulation which provides that initial payments on behalf of a child who moves to the home of another relative are not available to the new household if benefits for a concurrent period are made to ...