# Jackson v. O'Bannon

> Court of Appeals for the Third Circuit · September 11, 1980 · 633 F.2d 329

URL: https://www.frixlaw.com/law-library/cases/8912305

## Case

- **Full name:** JACKSON, Wayne, in his own behalf, on behalf of his unemancipated minor son, and on behalf of all others similarly situated v. O'BANNON, Helen, individually and in her capacity as Secretary of the Department of Public Welfare of Pennsylvania Stovall, Don Jose, individually and as Executive Director of the Philadelphia County Board of Assistance
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** September 11, 1980
- **Citations:** 633 F.2d 329
- **Precedential status:** Published
- **Opinion:** Dissent by Garth
- **Judges:** Garth, Sloviter
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8912305

## Opinion text

GARTH, Circuit Judge,
dissenting:
When a child of parents who are now separated is removed from the household of his mother to the household of his father, Pennsylvania, as a matter of policy and practice, will not commence making AFDC (welfare) payments to the child’s new household, in this case the father’s, until all payments made on behalf of the child to the prior household (the mother’s) have been officially terminated. The majority upholds this Pennsylvania practice finding that the Commonwealth has achieved a reasonable accommodation between the Social Security Act’s requirement that welfare recipients receive adequate, advance notice of reductions in benefits, and the practical fact that AFDC funds, although made on behalf of the child, must in fact be paid to an adult. The majority observes that the Pennsylvania procedure has the salutary effects of reducing welfare fraud and encouraging welfare recipients to plan carefully for custody transfers.
I cannot deny that there is a superficial appeal to the notion that duplicate or concurrent payments made on behalf of the same child should be avoided-indeed proscribed. Yet, however reasonable or even laudable the Pennsylvania procedure may be, it is plain that it conflicts with the clear requirements of federal law. See 42 U.S.C. §§ 601 , 602 (1976); 45 C.F.R. § 233.90 (1979). Federal law requires that eligibility for benefits must be determined solely on the basis of the child’s “need” which in turn must be measured solely with regard to the amount of income “actually available” for the child’s benefit. Because Pennsylvania, by its procedure, imposes an additional requirement for AFDC eligibility beyond the requirements mandated as exclusive by federal law, it is apparent to me that Pennsylvania is thereby violating the supremacy clause of the United States Constitution. I therefore dissent from the majority opinion which declines to invalidate the Pennsylvania procedure and thus permits the imposition of a state devised formula to alter radically the scheme of an integrated federal program.
I.
There is no dispute as to the essential facts in this case. The controversy concerns AFDC benefits granted on behalf of five year old Tarik Jackson whose parents are separated and who are both recipients of public assistance. Prior to February 21, 1979, Tarik had been living in a household with his mother and three others. Tarik’s mother’s welfare grant included AFDC benefits for Tarik. On February 21, 1979, Tar-ik changed homes, moving from his mother’s household and custody into the household and custody of his father, Wayne Jackson, the appellant in this case.
Jackson applied for public assistance benefits for himself and Tarik on March 1, 1979. At that time, however, DPW denied Jackson’s claim for benefits on Tarik’s behalf, on the ground that benefits for Tarik had already been paid to Tarik’s mother. DPW policy prohibited paying Tarik’s benefits to his father until payments made on Tarik’s behalf were officially excluded from the benefits paid to Tarik’s mother. Unless Tarik’s mother were to have waived the statutory notice provisions, this would entail a minimum ten day delay in the commencement of Jackson’s additional benefits so that Tarik’s mother could receive adequate, advance notice of her grant reduction. 1 Tarik’s mother did not waive her statutory rights to notice, and, additionally, because of certain administrative delays, benefits paid to her on Tarik’s behalf were not terminated until March 28, 1979 2 at *341 which time Jackson began to receive the supplemental benefits to care for Tarik. 3 DPW does not contest the fact none of the monies paid to Tarik’s mother in March, 1979 were actually spent on Tarik’s behalf.
Jackson filed this complaint as a class action seeking an order enjoining and declaring invalid Pennsylvania’s practice of withholding child benefit payments to a parent in his own situation pending termination of such benefits theretofore being paid to the prior custodial parent. He argued that, by its practice, Pennsylvania had imposed an additional condition on eligibility for welfare benefits which violated both the Social Security Act and the United States Constitution. On cross-motions for summary judgment, the district court, without certifying the class action, entered judgment in favor of DPW. Skipping over the essence of Jackson’s statutory claims and rejecting his constitutional arguments sub silentio, the district court upheld the Pennsylvania practice after concluding that it did not engender unreasonable delays in the granting of benefits. Because I conclude that Pennsylvania has imposed an impermissible, additional requirement on eligibility which violates federal law, and that the district court has misread the relevant enactments, and the majority has refused to give effect to the plain meaning of the legislation, I would reverse the judgment of the district court and direct that summary judgment be entered in Jackson’s favor. 4
II.
A.
It is axiomatic that upon voluntarily electing to participate in a federal welfare program, a state becomes bound by the federal regulations governing that program. King v. Smith, 392 U.S. 309 , 88 S.Ct. 2128 , 20 L.Ed.2d 1118 (1968); Eder v. Beal, 609 F.2d 695 (3d Cir. 1979). Thus, DPW cannot prevail if its policy, which conditioned child benefit payments to Jackson on the termination of such payments to Tarik’s mother, violates federal law.
The AFDC program, under which the grants on Tarik’s behalf were made, was created by Congress
[f]or the purpose of encouraging the care of dependent children in their own homes or in the homes of relatives by enabling each State to furnish financial assistance and rehabilitation and other services, as far as practicable under the conditions in such State, to needy dependent children and the parents or relatives with whom they are living to help maintain and strengthen family life and to help such parents or relatives to attain or retain capability for the maximum self-support and personal independence consistent with the maintenance of continu *342 ing parental care and protection, there is authorized to be appropriated for each fiscal year a sum sufficient to carry out the purposes of this part. .
42 U.S.C. § 601 (1976) (emphasis added). The Congressional intent, as clearly expressed in the above section, is to foster child welfare and parental responsibility by providing aid to the actual family unit where the child resides. Therefore, it is not surprising that in determining eligibility for AFDC benefits states are directed only to consider income “actually available” to the child through the parent in the household where the child actually lives. The federal regulations provide:
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 . . . [with a legal obligation of support] will be considered available for children in the household in the absence of proof of actual contributions; and
45 C.F.R. § 233.90 (a)(1) (1979) (emphasis added). This regulation furthers the twin goals of the AFDC program as expressed in 42 U.S.C. § 601 . By considering only income which is “actually available” to the child through the parent with whom he lives, it guarantees as much as possible that the child’s needs will be met. And by focusing on the parent’s obligation to children in his “household”, the Act’s emphasis on the protection of the family unit is furthered. 5
When the federal regulations are applied in the context of the instant case, it is plain that only Wayne Jackson’s income may be considered in determining Tarik’s eligibility for AFDC benefits. Although the regulation specifies that a parent’s income shall be attributed to his child, it makes clear that such attribution is only available to “children of the household” of that parent. In March, 1979 that “parent” was Wayne Jackson, Tarik’s father-not Tarik’s mother.
The majority offers no explanation or interpretation in its opinion which contradicts this clear and unequivocal meaning. Moreover, nothing appears in the statutes or regulations themselves which can lead to an interpretation contrary to the one I have set forth. Thus in order to reach a different result, (i. e. to authorize payments only to Tarik’s mother with whom he is not living) and to escape from the plain meaning of the legislation, the majority, while acknowledging that the literal language of the regulations on which Pennsylvania relies is inapplicable, (maj. op. typescript at 14-15), nevertheless resorts to self-constructed goals to justify its conclusion. The majority opinion, in complete disregard of the federal regulations ( 45 C.F.R. § 233 .-90(c)(2)) holds that a perceived Congressional intent to prevent fraud and duplicative payments requires the payment of AFDC monies only to Tarik’s mother, even though it is conceded that these monies were not used for Tarik’s support. I cannot agree. For while I may sympathize with the objective that the majority seeks to attain, I cannot avoid the clear meaning and statement of the pertinent federal regulations. Under the regulation, the only way in which the monies paid to Tarik’s mother could have affected Wayne Jackson’s March 1, 1979 application for Tarik’s benefits would have been if there was “proof of actual contributions” made by Tarik’s mother for Tarik’s support. It is stipulated that there was no such proof in this case.
Moreover, by conditioning the full grant to Wayne Jackson on the termination of payments to Tarik’s mother, Pennsylvania, *343 as a matter of policy, in effect presumes that Tarik’s mother used the payments which she received for Tarik to contribute to Tarik’s support. Such a presumption, which is implicit in the Pennsylvania policy, clearly violates the principle that only “actually available income” be used in determining eligibility for AFDC benefits. Furthermore, in this case it is admitted that Tarik’s mother made no such contributions for his benefit even though she received the AFDC funds for that purpose.
The Supreme Court, on numerous occasions, has struck down similar presumptions which attributed income to welfare beneficiaries without proof that such income was actually available. See e. g. King v. Smith, 392 U.S. 309, 88 S.Ct. 2128 , 20 L.Ed.2d 1118 (1968) (states cannot attribute to children the income of a man who cohabits with the mother but who has no legal obligation of support); Lewis v. Martin, 397 U.S. 552 , 90 S.Ct. 1282 , 25 L.Ed.2d 561 (1972) (state cannot reduce benefits because of “male assuming role of spouse” who nonetheless has no support obligation); Van Lare v. Hurley, 421 U.S. 338 , 95 S.Ct. 1741 , 44 L.Ed.2d 208 (1975) (state cannot attribute income from presence of a “lodger” in the house).
The majority apparently reads these cases as authorizing the payment of benefits to any legally responsible parent even though the child does not reside in that parent’s household and even though that parent admittedly does not utilize the AFDC payments for the child’s welfare. In this respect I suggest that the majority errs. These cases hold no more than that a state presumption attributing income of a non-parent to a child residing in the non-parent’s household, may not be sustained. They do not hold that just because an individual has the status of a parent and is therefore ostensibly legally responsible for a child, that the income of such a parent is correctly presumed to be attributable to the child where the income is concededly not used for the child and where the child resides in his other parent’s household.
Not only do these cases fail to support the majority’s opinion, analysis and conclusion, but the very structure of the AFDC program belies any presumption that an absent natural parent, even one having a legal obligation to support his child, will actually support the child. A needy child is considered “dependent” and hence eligible for assistance if he has been deprived of parental support by reason of the continued absence of a parent. 42 U.S.C. § 606 (a). Only if the parent is present in the household (and physically and mentally able) does the presumption arise that a parent will fulfill his duty of legal support. Accordingly, the AFDC program is premised only on the presumption that the parent or custodian with whom the child lives will utilize the aid received for the child’s benefit. To presume generally, as Pennsylvania and the majority presume, that absent parents will provide aid for their needy children receives no support from either the statutory scheme, case law or logic.
The majority has shown no reason why the presumption indulged in by Pennsylvania in this ease should be struck down. Tarik’s mother did not have custody over Tarik during March, 1979. She did not, in fact, use the monies which she received for Tarik’s support during that month for Tar-ik’s benefit, nor did she in any way contribute to his support. Thus, there is no basis or reason to presume at all, let alone to presume conclusively, that she would continue to contribute monies to a child who no longer lived with her. Accordingly, since the effect of the Pennsylvania practice is to presume conclusively that federal monies under a welfare program are in fact available to a child when, in fact, these funds may very well not be so available, the practice, and thus the presumption, must be invalidated as in conflict with federal law.
B.
DPW contends that, its practice is justified, and in fact mandated, by federal regulations which prohibit “duplicative” AFDC payments. This total reliance based upon the federal regulation,set out below is the only justification given by DPW for its refusal to pay benefits Tarik’s father with *344 whom Tarik was living. The majority evidently agrees with me, that the federal regulations do not prohibit duplicative payments in the present situation. Nevertheless, the majority upholds DPW’s practice, a practice which depends upon finding a federal policy against duplicative payments in the following regulations:
2) Federal financial participation is available in:
(i) Initial payments made on behalf of a child who goes to live with a relative specified in section 406(a)(1) of the Social Security Act within 30 days of the receipt of the first payment, provided payments are not made for a concurrent period for the same child in the home of another relative or as AFDC-FC;
(iii) Payments made for the entire month in the course of which a child leaves the home of a specified relative, provided payments are not made for a concurrent period for the same child in the home of another relative or as AFDC-FC . . .
45 C.F.R. § 233.90 (c)(2). Referring primarily to the proviso in the regulation that allegedly proscribes concurrent payments, DPW argues that it would not have been reimbursed by the federal government if it had made payments on Tarik’s behalf to Wayne Jackson, before Tarik’s mother’s benefits were officially terminated.
In my view, a view that is shared by the majority (maj. op. typescript at 336), the regulations cited by DPW are inap-posite. In the first instance, as respects the facts of this particular case, these regulations are simply irrelevant. Both subsections (i) and (ii) deal with situations where a child resides in two households during a single month and benefits are claimed by both household for that same month. Here, although Tarik left his mother and moved in with his father on February 21, 1979, Wayne Jackson did not apply for benefits until March 1, 1979. And it is undisputed that Tarik lived with his father for the entire month of March. Thus, Tar-ik’s mother was not legitimately entitled to any benefits on Tarik’s behalf during March. Therefore, since Wayne Jackson’s application for benefits was limited to the month of March-a period when Tarik resided exclusively with his (Jackson’s) household-these regulations are just not applicable.
Moreover, inasmuch as Jackson seeks a declaration of the invalidity of Pennsylvania’s practice, it is appropriate to note that the regulations relied upon by DPW would not have barred payments to Wayne Jackson even if he had applied for benefits as of February 21, 1979. Upon analysis it is apparent that subsection (i) would have no bearing on this situation. Subsection (i) permits payments to a household for a 30 day period before a child moves in, so that the home can be made ready, so long as the previous home (from which the child is departing) does not receive payments for the same period. This regulation does not encompass the situation here, where the applicant seeks benefits starting after he takes custody of the child.
Subsection (iii) is similarly inapplicable. It permits payments to a home which a child leaves during the course of a given month (/. e., the home of Tarik’s mother), so long as the new home (/. e., the home of Tarik’s father) does not receive payments on behalf of the child for the same period. Here, however, benefits are being sought by the “new” home, not by the home which Tarik has left. Hence, this regulation does not deal with this situation. 6 See Burns v. *345 Alcala, 420 U.S. 575, 584-85 , 95 S.Ct. 1180, 1186 , 43 L.Ed.2d 469 (1975).
Thus, the federal regulations relied upon by DPW are not only inapplicable to the facts of this particular case, but they provide no support for the Pennsylvania practice of prohibiting duplicative payments during the time necessary for official termination of benefits to a child’s prior household. To obtain federal funding in this context, Pennsylvania is required to determine eligibility for AFDC benefits in accordance with the federal regulations which specify that reference may be had only to income that is actually available for the child’s use.
C.
Pennsylvania offers no other authority for engrafting onto the federal program its own requirement that duplicative payments be proscribed in a situation such as we have here. The majority as I have previously indicated suggests a general policy against the possibilities of fraud or concurrent payment. But, as I have already pointed out, we cannot permit our views or those of Pennsylvania to prevail in the face of federal statutory authority which mandates a contrary result. It is federal AFDC monies that are at issue in a federally funded integrated program. The flaws the majority perceives in the program can only be rectified by Congress and not by Pennsylvania or this court.
The majority lays great weight on what it considers to be the “reasonableness” of the Pennsylvania practice challenged here. Permitting duplicate payments, according to the majority, would facilitate welfare fraud. Moreover, the majority argues that the Pennsylvania practice has the salutary effect of encouraging families to plan for custody changes. These considerations, while admittedly important, are nevertheless improper grounds for decision in light of the clear conflict between the Pennsylvania practice and federal law. In effect, the majority concludes that Pennsylvania has remedied a defect in the federal law, and it upholds the remedy. But whether or not such a “defect” exists and whether or not the Pennsylvania practice constitutes an appropriate remedy are issues which must be dealt with by Congress or the federal regulatory agencies and not by this court. See King v. Smith, 392 U.S. at 332-33 , 88 S.Ct. at 2141 . There is little question that federal agencies could easily amend the regulation on which DPW purports to rely so as to prohibit the type of duplicative payments involved in this case. They have not done so. Similarly, Congress could amend its requirement that eligibility for AFDC benefits be determined solely by reference to actually available income so as to presume that the income of an absent parent is attributed to a child; it has not yet enacted such an amendment. Until these changes in the federal law are made, DPW is bound by the federal law as it now stands. Under current law, whatever its defects, the Pennsylvania practice cannot be countenanced.
Moreover, I am not as convinced of the “reasonableness” of the Pennsylvania practice as the majority appears to be. AFDC benefits are the last resort for support of a dependent child. Without them, the eligible child does without the basic necessities of life. In this very case, where Tarik’s mother did not contest the reduction in her benefits, there was a one month delay before Tarik’s new benefits began. During that time, Tarik received no AFDC monies. If Tarik’s mother had contested her reduction, even on entirely frivolous grounds, it was conceded that such a contest could be protracted and benefits could be delayed for as long as one year.
It is no answer for the majority to say that such a situation is not before us, and therefore need not be considered (maj. op. typescript 338). If in order to bolster its position, the majority can foresee the possibility that fraud or collusion will result unless we sustain Pennsylvania’s practice as a matter of policy, even though neither fraud nor collusion are present in this case, I cannot understand why the majority clo *346 ses its eyes and refuses to face up to the very practical problem of protracted litigation, which can deprive eligible children of needed AFDC benefits for considerable periods of time. At oral argument this problem was explored at depth and was not considered hypothetical as the majority now characterizes it. Furthermore, it is stipulated in this record and it was admitted at oral argument, that Pennsylvania has no established procedure for dealing with the hardships which will be inflicted on children, such as Tarik, who receive no benefits during the period of such a delay. Accordingly, the “reasonableness” of a practice which results in paying only the wrong parent escapes me. I cannot understand why needy children, who are eligible for these benefits under federal law, must be refused AFDC benefits for substantial periods of time, particularly when the benefits are being denied in clear derogation of federal law.
III.
In summary, because I conclude that the Pennsylvania practice, challenged in this case, is in complete contravention of federal law, and because I feel that it creates undue and unjustified hardship on children who are eligible for AFDC benefits, the only true beneficiaries of AFDC funds, I must dissent from the majority opinion. I would reverse the judgment of the district court and direct that summary judgment be granted in favor of the plaintiff, Wayne Jackson, and as indicated earlier, I would leave for District Court determination the certification of the class sought by Jackson.
. See C.F.R. § 205.10(a)(4)(i). For a discussion of the importance and mandatory nature of the notice provisions of the Social Security Act see Eder v. Beal, 609 F.2d 695 (3d Cir. 1979).
. Welfare payments in Pennsylvania are made prospectively, on a bi-monthly basis. DPW stated at oral argument that even though the ten day notice requirement had been met by March 12, the second March check payable to *341 Tarik’s mother had already been prepared by that date and included benefits for Tarik. Therefore, solely because of this administrative delay, under the Pennsylvania policy which prohibited duplicative payments, no benefits for Tarik were included in Jackson’s second March, 1979 check.
. Jackson did receive some payments on Tar-ik’s behalf during March, 1979. Under Pennsylvania’s flat grant welfare system, the marginal increase in benefits decreases as additional persons are added to an assistance unit. Thus, Tarik was entitled to more benefits in his father’s household than in his mother’s, since Tarik’s mother’s grant included benefits for five individuals. Pursuant to an agreement reached before the district court on March 19, 1979, DPW paid Jackson $32, which represented this incremental amount. In addition, Jackson was given $10 in food stamps and a medical card for Tarik.
. Jackson complained that the Pennsylvania practice created an irrebuttable presumption in derogation of his rights under the due process clause of the fourteenth amendment to the United States Constitution. I am at a loss to understand how the district court could have granted summary judgment for the defendants without even addressing Jackson’s constitutional claims. However, since I would hold that the Pennsylvania practice contravenes federal statutory law, I need not, and therefore do not, address the constitutional challenges raised by Jackson, although the majority does discuss these issues, but finds no constitutional violations.
Furthermore, as noted in text, the district court has yet to rule on Jackson’s request for class certification. It is for the district court in the first instance to consider whether a class should be certified in this case.
. The regulations make clear that the term household is used in the Act in its physical sense in reference to the place where the child actually resides and is cared for:
(B) a home is the family setting maintained or in the process of being established, as evidence by assumption and continuation of responsibility for day to day care of the child by the relative with whom the child is living. A home exists so long as the relative exercises responsibility for the care and control of the child, even though either the child or the relative is temporarily absent from the customary family setting . ...
45 C.F.R. § 233.90 (c)(l)(v)(B).
. Under the facts of this case, subsection (iii) permitted the payments to Tarik’s mother for the entire month of February, 1979 even though Tarik moved into his father’s household on February 21, 1979, because Wayne Jackson made no application for AFDC benefits in February. If Wayne Jackson had applied for benefits on February 21, and received payment therefore, under the analysis which I suggest, he would have been entitled to benefits on Tarik’s behalf under 45 C.F.R. § 233.90 (a)(1) which supplied the sole criteria for eligibility relevant to his application. But, in this event, had Tarik’s father received payments for benefits commencing February 21, the payments to Tarik’s mother for the last week in February would not have been authorized because of 45 C.F.R. § 233.90 (c)(2)(iii).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8912305. Public record. Not legal advice.