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November 1, 1976

ELLEN GURLEY and her child CHERYL; JOSEPHINE GURLEY and her children LORIANN and CYNTHIA; and Philadelphia Welfare Rights Organization, on behalf of themselves and all others similarly situated
HELENE WOHLGEMUTH, Individually and as Secretary of the Pennsylvania Department of Public Welfare; DON JOSE STOVALL, individually and as Executive Director of the Philadelphia County Board of Assistance; HESTER FITZGERALD, individually and as District Supervisor of the Tioga District of the Philadelphia County Board of Assistance

The opinion of the court was delivered by: BECKER



 I. Preliminary Statement

 This is a welfare rights case founded upon an allegation of conflict between the Pennsylvania Department of Public Welfare (DPW) Manual and the Federal regulations promulgated under the Social Security Act. Plaintiffs Ellen Gurley and Josephine Gurley are sisters. Ellen and her minor daughter reside in a house in Philadelphia, Pennsylvania with Josephine, and Josephine's two minor daughters. Both plaintiffs receive assistance under the Aid to Families with Dependent Children program (AFDC), 42 U.S.C. § 601 et seq.1 The defendants are Frank Beal, Secretary of the Pennsylvania Department of Public Welfare; Don Jose Stovall, Executive Director of the Philadelphia County Board of Assistance; and Hester Fitzgerald, District Supervisor of the Tioga District of the Philadelphia County Board of Assistance.

 Pursuant to Pennsylvania Department of Public Welfare Manual § 3243, *fn2" because they occupy the same dwelling unit, plaintiffs and their children are treated as a single assistance unit of five persons for purposes of determining the amount of their monthly AFDC grant. If the sisters and their respective children lived separately, they would, the defendants admit, be treated as two separate assistance units, one with two persons and the other with three. Under Pennsylvania's flat grant welfare system, the size of the increment in assistance as additional members are added to an assistance unit decreases as the unit size increases. Because of this feature of the system, an assistance unit of five persons receives an AFDC grant which is smaller than the total grant received by separate assistance units made up of two and three persons. Thus, the plaintiff Gurley sisters and their children receive a smaller grant because they live together than they would if they lived apart. At one relevant point in the record, for instance, the single grant for an assistance unit of five was $409. *fn3" The regular grant for an assistance unit of two persons, at the same time, was $247 a month, while the grant for a unit of three was $302 a month. Thus, if the plaintiffs were treated as two separate assistance units, they would have received a total of $549, or $140 more a month than they actually received.

 Plaintiffs brought this action pursuant to 42 U.S.C. § 1983, to challenge the reduction in their total grant because they live in the same dwelling unit. They specifically attack the legality and constitutionality of D.P.W.Man. § 3243 under the due process and equal protection clauses of the Fourteenth Amendment, and the Social Security Act, 42 U.S.C. § 601 et seq., and regulations promulgated thereunder, particularly 45 C.F.R. § 233.90(a). *fn4" They also assert a First Amendment freedom of association claim. Plaintiffs have asked for class certification.

 On September 30, 1975, by agreement of the parties, we certified a class consisting of all persons in Pennsylvania who (1) receive assistance under AFDC, and (2) live in a common dwelling unit where there are two (2) or more specified relatives (as defined in D.P.W. Manual § 3122.2(a), (b), (c)), and where the specified relatives share any of the expenses of the dwelling unit, are responsible for the care, maintenance and education of different dependent children, and where neither specified relative is a roomer and/or boarder.

 We now have before us cross motions for summary judgment and defendants' motion to dismiss for lack of subject matter jurisdiction. As will be seen, we find that plaintiffs have presented substantial constitutional questions so as to confer subject matter jurisdiction upon this Court under 28 U.S.C. § 1343(3). Defendants' motion to dismiss will therefore be denied. On the substantive issues, we agree with plaintiffs that D.P.W. Manual § 3243 conflicts with 45 C.F.R. § 233.90(a) and shall, in accordance with the discussion below, grant their motion for summary judgment and deny defendants'. Under these circumstances, of course, we need not reach the merits of plaintiffs' constitutional contentions or refer them to a three judge court. *fn5"

 II. Subject Matter Jurisdiction

 Plaintiffs assert that we have jurisdiction over the constitutional claims in this § 1983 action under 28 U.S.C. § 1343(3) and (4) and that we have pendent jurisdiction over their claim that D.P.W. Man. § 3243 conflicts with federal regulations. We have subject matter jurisdiction over the constitutional claims under § 1343(3) only if we determine that the claims raise substantial constitutional questions. Hagans v. Lavine, 415 U.S. 528, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974). *fn6" If we so find, then we also have jurisdiction over the statutory claims based on the doctrine of pendent jurisdiction. Hagans, supra.

 The threshold question then is whether plaintiffs have raised a substantial constitutional question. The standard for making this determination was reviewed in detail by the Supreme Court in Hagans. The language in Hagans which is perhaps most helpful to a district court faced with this issue is excerpted from Ex parte Poresky, 290 U.S. 30, 78 L. Ed. 152, 54 S. Ct. 3 (1933). The Court there stated that jurisdiction shall be exercised unless the constitutional issue presented is:


plainly unsubstantial, either because it is 'obviously without merit' or because 'its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.'

 290 U.S. at 32. The Third Circuit recently stated that "A claim is sufficient to confer . . . jurisdiction . . . it if is not 'wholly insubstantial' or 'wholly frivolous.'" Williams v. Wohlgemuth, 540 F.2d 163, 166 (1976). Further, the mere fact that constitutional claims may be "doubtful" or "of questionable merit" by no means renders them "insubstantial" for § 1343 jurisdictional purposes. Goosby v. Osser, 409 U.S. 512, 35 L. Ed. 2d 36, 93 S. Ct. 854 (1973). As defendants conceded in one of their briefs, "[the] test for substantiality obviously favors a plaintiff." *fn7"

 Plaintiffs rely primarily upon their equal protection claim as support for the exercise of subject matter jurisdiction here. *fn8" They assert, essentially, that Pa.D.P.W. Man. § 3243 results in the unconstitutional classification of Pennsylvania AFDC recipient families into two separate groups for the purpose of determining the size of the monthly grant they receive: (1) AFDC families living in separate dwelling units, AFDC families living with a non-public assistance family and AFDC families living as roomers and boarders in the household of another AFDC family, *fn9" all of which receive the flat grant allowance for a family unit of their size; and (2) AFDC families living in a common dwelling unit with another AFDC family (not as roomers or boarders), which must share a single flat grant.

 Defendants submit that plaintiffs' equal protection claim is insufficient for purposes of jurisdiction because of the principle that states have wide discretion in setting the standard of need and in determining the level of benefits they will pay to AFDC recipients. But this argument does not prove enough and contains several fatal flaws. First, the analysis in large part does not controvert plaintiffs' claim under the equal protection clause. The cases cited by defendants, including King v. Smith, 392 U.S. 309, 20 L. Ed. 2d 1118, 88 S. Ct. 2128 (1968), Rosado v. Wyman, 397 U.S. 397, 25 L. Ed. 2d 442, 90 S. Ct. 1207 (1970), and Weinberger v. Salfi, 422 U.S. 992, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975) deal with a multitude of complex and important statutory and constitutional issues. None of them, however, confront the question of the appropriate application of the equal protection clause in the field of social welfare law. Plaintiffs do not challenge, on equal protection grounds, the simple right of Pennsylvania to set a benefit level for AFDC recipients. What plaintiffs do challenge, pursuant to the Equal Protection Clause, is the right of defendants to treat what they allege to be similarly situated classes of AFDC recipients differently.

 The only case cited by defendants which is close to the point is Dandridge v. Williams, 397 U.S. 471, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970). However, even Dandridge stops short of rendering plaintiffs' complaint "plainly insubstantial" in the sense contemplated by Hagans, supra, and Goosby, supra, for it is readily distinguishable from the instant case. Dandridge involved the state's discretion to set the level of the AFDC grant for a traditional, nuclear family, where the parents were responsible for the support of all of the children. The relevant AFDC unit in Dandridge was thus quite unlike the polyglot households with several separate and distinct nuclear families which are included in plaintiffs' class here. Finally, in evaluating the impact of Dandridge on the question of this Court's jurisdiction over the instant case, Hagans itself is most instructive. For, in Hagans, the constitutional claim which gave rise to § 1343 jurisdiction was an equal protection cause of action. As the Supreme Court held:


Dandridge evinced no intention to suspend the operation of the Equal Protection Clause in the field of social welfare law. State laws and regulations must still "be rationally based and free from invidious discrimination."

 Hagans, at 539.

 The Third Circuit has recently applied the doctrine announced in Hagans v. Lavine to find § 1343 jurisdiction in a case which alleged that Pennsylvania's medical assistance regulations governing abortions violated the Equal Protection Clause and Title XIX of the Social Security Act. Doe v. Beal, 523 F.2d 611 (3d Cir. 1975). And in Williams v. Wohlgemuth, supra, the Third Circuit approved Judge Broderick's determination that an allegation that Pennsylvania's emergency assistance program violated the equal protection clause presented a substantial constitutional question. See also Hoehle v. Likins, 405 F. Supp. 1167 (D.Minn. 1975). Applying the standards we have outlined to plaintiffs' claim, we cannot conclude that the classifications created by D.P.W.Man. § 3243 are "so unquestionably rational that the constitutional challenge is wholly insubstantial." Williams, at 166.

 If we were to reach the merits of plaintiffs' constitutional claims, we would have to find a rational basis upon which to uphold the classification. The question thus presented has not been passed upon and hence is not one whose "unsoundness . . . clearly results from the previous decisions of [the Supreme Court] . . ." Ex parte Poresky, 290 U.S. at 32. We therefore find that we have subject matter jurisdiction over this case, and will deny defendants' motion to dismiss.

 In Hagans, the Supreme Court specified the procedures to be followed by the district court when a state statute or regulation is challenged on both statutory and constitutional grounds. Hagans provides that if, as is the case here, the single district judge determines that there is subject matter jurisdiction, then he or she may hear the pendent claim that state regulations are invalid because they conflict with federal law. If the single judge rejects the statutory claim, a three-judge court must then be called to consider the constitutional questions. *fn10" After an explication of the record before us on the cross motions for summary judgment we will thus proceed to a consideration of plaintiffs' pendent statutory claim.

  III. The Undisputed Facts of Record11

 A. The Pennsylvania Flat Grant Scheme

 On April 1, 1974, pursuant to Pa.D.P.W.Man. § 3210, Pennsylvania's Department of Public Welfare adopted a flat grant standard under which the dollar amount of an assistance unit's grant is not based on the actual needs of a given recipient group, but rather on an officially designated level of need for all Pennsylvania recipient groups of the same size (adjusted by county for variations in the cost of living). *fn12" Under this system, an assistance unit's actual needs and expenses have no impact on their grant. A recipient family may spend its flat grant as it wishes so long as it is not to the detriment of the children. If, through wise budgeting, an assistance unit is able to satisfy its basic needs for an amount less than its grant, it may retain the savings or spend them as it desires. The assistance unit's grant is not reduced if, for instance, it is able to live rent-free or economize on its food bill by planting a vegetable garden. Under this "flat grant" system, as assistance units get larger, the marginal percentage increase in the amount of their flat grant decreases. For example, in Philadelphia, at one relevant time, assistance units of from one to five persons received the following monthly grants regardless of their particular situation: Assistance Unit Size Monthly Grant n13 % Increase 1 $164 2 $247 50% 3 $302 22% 4 $360 19% 5 $409 13%


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