Appeal from the United States District Court for the Eastern District of Pennsylvania.
Van Dusen and Weis, Circuit Judges, and Stern, District Judge.
Van Dusen, Circuit Judge.
This appeal challenges a July 25, 1975, district court order*fn1 declaring that certain Pennsylvania Public Assistance*fn2 regulations are invalid to the extent that they establish a conclusive presumption that income of legally responsible relatives is available to dependent children occupying a common dwelling and enjoying defendants "from denying or reducing, by reason of income of a legally responsible relative, AFDC benefits which would otherwise be payable to applicants who prove that such presumptively available income is not actually available for their support." We vacate the district court order due to an intervening decision of a Pennsylvania appellate court (see pages 252-253 below) and remand for further proceedings.
Both named plaintiffs and their minor children are eligible for AFDC under § 406 of the Act, 42 U.S.C. § 606, and have received AFDC assistance for several years. This provides federal moneys for children who have "been deprived of parental support and care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent." Mr. Brown is disabled by reason of alcoholism (30a). The McLaughlin family receives AFDC by reason of Mr. McLaughlin's polio condition, which prevents him from doing normal work, although he earns some income as a part-time school bus driver. The Brown family receives AFDC by reason of Mr. Brown's continued absence from the home because he is incarcerated. He receives monthly Veterans' Administration checks.
Prior to November 1973, the Commonwealth computed its assistance grants without regard to any other income. At that time, however, it began to conclusively presume the availability of their husbands' income pursuant to P.A. Manual §§ 3234.6 and 3234.61, since the husbands were legally responsible relatives under state law and were occupying a common dwelling.*fn3 Although incarcerated, Mr. Brown was found to be "occupying a common dwelling" because he kept his clothes and other personal belongings at the assistance unit and had not shown an indication of having definitely abandoned his family. Mr. McLaughlin continues to live with his family. Accordingly, Mrs. McLaughlin's assistance for herself and her nine children was reduced by $95.40 a month, while Mrs. Brown's assistance for herself and her three minor children was reduced by $101.00 per month. This was done despite the uncontroverted evidence in both cases that the husbands refused to use any of their money to support their wives and children and made no financial contributions to their wives and children. The Hearing Examiner at Mrs. McLaughlin's administrative agency hearing made a specific finding that her husband refused to give any of his money to the family and found that none of his money was in fact available to the family (28a). Further factual background and legal conclusions of the district court in this case are set forth in the district court opinion, McLaughlin v. Wohlgemuth, 398 F. Supp. 269 (E.D. Pa. 1975), and need not be repeated here.
In that opinion the court said (398 F. Supp. at 276):
". . . § 3234.6 and 3234.61 provide for a conclusive presumption that the income of a legally responsible relative is available to dependents living in the same assistance unit. The legally responsible relative is considered to be living with the AFDC applicant 'if he and the relative occupy a common dwelling,' even if that relative is residing elsewhere for purposes such as employment, hospitalization, or institutionalization."
Since the district court's decision of July 25, 1975, a Pennsylvania appellate court has interpreted the subject Pennsylvania regulations as not creating a conclusive presumption. See Bowen v. Commonwealth Dept. of Public Welfare, 21 Pa. Cmwlth. 144, 343 A.2d 690, 694 (1975), where the court said:
"It cannot be doubted that the departmental regulation in effect here does create a presumption that income of legally responsible relatives is available to the welfare recipient. The presumption, however, does not foreclose individualized determination and is not irrebuttable. Under Section 3237.33 of the Pa. Manual the income presumed available under Section 3237.322 may be waived when it appears unsound, unreasonable, or impracticable to expect the legally responsible relative to contribute such income to the support of their child. Interpreting this section within constitutional principles, we read this waiver provision so as to afford the affected individuals an opportunity to contradict the presumption and to seek exception from the rule. Should the department fail to waive the presumption in capricious disregard of competent evidence, such action would, of course, be reviewable by this Court as an abuse of discretion."
See also Wohlgemuth v. Soto, 21 Pa. Cmwlth. 532, 346 A.2d 841 (1975).
The opinion in Bowen, handed down September 3, 1975, makes clear that the Pennsylvania regulations are to be interpreted consistently with the Social Security Act of 1935, as amended, 42 U.S.C. § 601 et seq., and the federal regulations relied on by the district court in its opinion. See McLaughlin, supra at 275-79 of 398 F. Supp.
The most pertinent federal regulation, effective June 17, 1975 (40 Fed. Reg. 12507-08), was published on March 19, ...