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October 27, 1969

Marie JENKINS et al., Plaintiffs,
Thomas W. GEORGES, Jr., et al., Defendants

The opinion of the court was delivered by: ALDISERT


Pursuant to its program of Aid to Families with Dependent Children (AFDC), the Pennsylvania Department of Welfare has adopted Regulation 3211.5 which establishes a separate classification for dependent children living with non-legally responsible adults who are not welfare applicants. Recipients falling within this classification may receive assistance only under a special allowance schedule set forth in Regulation 3265. Compared with the otherwise applicable schedule in Regulation 3264, this schedule substantially reduces the maximum assistance that can be received, on the theory that at least part of the 'substitute parent's' income is available to the chold.

 Seeking declaratory and injunctive relief, plaintiffs attack these regulations as violative of the equal protection clause of the Constitution and as incompatible with the policies of the Social Security Act, 42 U.S.C. §§ 601-609, and the binding regulations of the Department of Health, Education and Welfare, 45 C.F.R. § 203.1(b), 33 Fed.Reg. 11290 (August 8, 1968), 45 C.F.R. § 233.20(a)(3), (11). 34 Fed.Reg. 1395 (January 29, 1969).

 Because plaintiffs present a 'sufficiently substantial' challenge to the constitutionality of statewide regulations, this three-judge court is properly convened pursuant to 28 U.S.C. § 2281, King v. Smith, 392 U.S. 309, 312 n. 3, 88 S. Ct. 2128, 20 L. Ed. 2d 1188 (1968). Jurisdiction is conferred by 28 U.S.C.A. § 1343(3) and (4). And since this action is brought under the Civil Rights Act, 42 U.S.C. § 1983, we need not pause to consider questions of abstention or exhaustion of administrative remedies, King v. Smith, supra, at 312 n. 3, 88 S. Ct. 2128; Damico v. California, 389 U.S. 416, 88 S. Ct. 526, 19 L. Ed. 2d 647 (1967).

 In addition to the individual plaintiffs -- the dependent children whose assistance has been reduced and the non-legally responsible adults with whom they reside -- two voluntary, unincorporated associations of welfare recipients seek to maintain this action. The Welfare Rights Organization of Allegheny County was formed in 1968 by recipients to assist needy individuals in obtaining welfare grants and to help such persons become aware of and assert their legal rights under the welfare program. WROAC is the coordinating agency for neighborhood welfare organizations in Allegheny County and has approximately 2,000 members. Citizens Against Inadequate Resources was formed in 1966 for the same reasons. CAIR represents more than 200 families.

 In Norwalk CORE v. Norwalk Redevelopment Agency, 42 F.R.D. 617, 622 (D.Conn.1967), the local organization of the Congress of Racial Equality and certain tenants' associations were denied standing because they were 'not themselves members of the classes whose rights they claim(ed) to be asserting.' On appeal, the Second Circuit made this observation:

 We think that the reasons for requiring an individual plaintiff in a class action to be a member of the class do not necessarily preclude an association from representing a class where its raison d'etre is to represent the interests of that class.

 Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 937 (2 Cir. 1968). See also, Smith v. Board of Educ., 365 F.2d 770 (8 Cir. 1966); Scenic Hudson Preservation Confed. v. FPC, 354 F.2d 608 (2 Cir. 1965); Powelton Civic Home Own. Ass'n v. HUD, 284 F.Supp. 809 (E.D.Pa.1968). That both WROAC and CAIR are organized for the purpose of representing the rights of local welfare recipients is indisputable. Indeed, we are told that 'but for the efforts of WROAC, these (individual) plaintiffs would not have brought suit in this action.'

 It is not necessary however, to decide whether the association plaintiffs have standing, for their presence in this case is not essential to the vindication of rights of persons not immediately before this court. Norwalk CORE v. Norwalk Redevelopment Agency, supra, 395 F.2d at 937.

 WROAC and CAIR have attempted to join in this action apparently because their membership includes recipients in all three categories of the 3211.5 classification: (1) dependent child living with a non-applicant relative; (2) dependent child living with his non-applicant parent and step-parent; (3) dependent child and mother living with a non-applicant person assuming the role of spouse. The individual plaintiffs all fall within category (1).

 We believe, however, that the individual plaintiffs are proper parties to maintain a class action on behalf of all welfare recipients in the 3211.5 classification. The entire classification, including all three categories, is based solely on one criterion: that the applicant or recipient is living with a non-applicant person who does not receive assistance and who is not legally responsible for support of the child. All such recipients are eligible for only that quantum of assistance provided by the reduced allowance schedule. Persons in categories (2) and (3) are treated exactly the same as those in category (1). We find that the individual plaintiffs may prosecute this suit as a class action on behalf of all persons receiving benefits under Pennsylvania Regulations 3211.5 and 3265. The requirements of Fed.R.Civ.Pro. 23 are satisfied. The difference in allowances under schedules 3265 and 3264 can best be appreciated by comparing the following tables: 3264 MAXIMUM TOTAL ALLOWANCES FOR COMMON ITEMS BY //////////////////////////////////////-- NUMBER OF PERSONS IN THE ASSISTANCE UNIT //////////////////////////////////-- No. of Persons in Assistance Unit For each 1 2 3 4 5 6 add. person $ 119 $ 182 $ 222 $ 262 $ 300 $ 332 $ 40 3265 TOTAL ALLOWANCES FOR CERTAIN MINOR DEPENDENT //////////////////////////////////////-- CHILDREN AND OTHER PERSONS (3211.5) //////////////////////////////-- No. of Persons in Assistance Unit For each 1 2 3 4 5 6 add. person $ 84 $ 128 $ 156 $ 184 $ 210 $ 232 $ 30


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