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SHOWERS v. COHEN

October 14, 1986

DIANN SHOWERS, on behalf of herself and her minor children and LYDIA COLON, Plaintiffs
v.
WALTER COHEN, Secretary of the Pennsylvania Department of Public Welfare and OTIS R. BOWEN, M.D., Secretary of the United States Department of Health and Human Services, Defendants



The opinion of the court was delivered by: RAMBO

 SYLVIA H. RAMBO, United States District Judge.

 Procedural Background

 This case comes before this court on multiple motions of the parties, all of which can be ruled on at this juncture. On May 20, 1986, plaintiffs Diann Showers and Lydia Colon, on behalf of themselves, their minor children and all other persons similarly situated filed an amended complaint against Walter Cohen, Secretary of the Pennsylvania Department of Public Welfare (DPW), and Otis R. Bowen, M.D., Secretary of the U.S. Department of Health and Human Services (HHS). The complaint challenges the construction of defendants' rules, by which benefits for children under Title II of the Social Security Act, 42 U.S.C. § 401 et seq., are included in determining the AFDC eligibility of their siblings and other household members, thereby reducing or terminating AFDC benefits for the siblings and other household members. Plaintiffs also claim an unconstitutional taking of property without just compensation, violations of the Due Process and Equal Protection clauses of the Fifth and Fourteenth Amendments and violation of 42 U.S.C. § 1983. Jurisdiction is conferred on this court pursuant to 28 U.S.C. § 1331.

 The inclusion of the Title II children in the AFDC group results in a decrease in the financial payment from DPW which according to plaintiffs results in the improper use of the minor plaintiff's Title II benefits by the entire assistance group thus effecting an assignment. Plaintiffs challenge defendants' construction of 42 U.S.C. § 602(a)(38) on the ground that it is prohibited by 42 U.S.C. § 407, which bars assignment of Title II benefits to anyone other than the Title II recipient.

 On July 3, 1986, the federal defendant, Bowen, filed a motion to dismiss or alternatively for summary judgment. On July 11, 1986, plaintiffs filed a motion for class certification and shortly thereafter, on August 1, 1986, a motion for preliminary injunction and cross-motion for summary judgment. Finally, the state defendant, Cohen, filed a cross-motion for summary judgment.

 Factual Background

 The facts in this case, which are not in dispute, are as follows. Plaintiff Diann Showers lives in Lebanon County, Pennsylvania, with her three minor children, Langston, David and Tonisha. As a representative payee for David, Ms. Showers currently receives $181.00 per month in Title II benefits paid on the account of his father Willie Moore, a disabled, insured, former wage-earner. Moore is not the father of Langston or Tonisha. Ms. Showers, Langston, David and Tonisha receive an AFDC grant of $363.00 per month plus $50.00 per month in child support for Tonisha which is collected by DPW and paid in addition to the AFDC grant. David's individual expenses total $150.00 per month. Ms. Showers uses the rest of David's Title II benefits to pay his share of the common household expenses, including rent and utilities.

 When Lebanon County Assistance Office notified Ms. Showers in November, 1985, that DPW proposed to reduce her AFDC benefits because of the application of the challenged regulations, Ms. Showers filed a timely appeal. DPW has stayed her administrative proceedings pending the outcome of this action. If the challenged regulations were to be applied and David's Title II benefits were counted as income to the four-person filing unit, the monthly AFDC grant would be $270.00 per month.

 Plaintiff Lydia Colon lives in Northumberland County, Pennsylvania, with her two minor children, Vincent Vasquez and Wendy Rivera. As representative payee for Vincent, Ms. Colon receives $193.00 per month in Title II benefits for him on the account of his father, Jorge Vasquez, who died as an insured wage-earner. Vasquez is not the father of Wendy.

 Discussion

 The issues presented in this case have been addressed by a wide variety of courts. A number of courts have sided with plaintiffs' argument. See, Frazier v. Pingree, 612 F. Supp. 345 (M.D. Fla. 1985); Gorrie v. Heckler, 624 F. Supp. 85 (D. Minn. 1985); White Horse v. Heckler, 627 F. Supp 848 (D.S.D. 1985). However, the courts in California, Georgia, Indiana, Michigan and Oregon favor defendants' view. See, Creaton v. Heckler, 625 F. Supp 26 (C.D. Cal. 1985); Oliver v. Ledbetter, 624 F. Supp. 325 (N.D. Ga. 1985); Huber v. Blinzinger, 626 F. Supp 30 (N.D. Ind. 1985); Ardister v. Mansour, 627 F. Supp. 641 (W.D. Mich. 1986); and Sherrod v. Hegstrom, 629 F. Supp 150 ...


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