such assistance. Plaintiffs strenuously urge that the regulations at issue herein result in an invidious discrimination or classification devoid of any rational basis.
It is clear that a statute which creates such distinctions will violate the constitutional right to equal protection of the laws if there are no rational bases for such distinctions. See Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970); Flemming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960); Richardson v. Belcher, 404 U.S. 78, 92 S. Ct. 254, 30 L. Ed. 2d 231 (1971). However, plaintiffs have failed to discuss another essential element to the proper application of the equal protection formula. A valid claim under the equal protection clause of either the Fifth or Fourteenth Amendments will be sustained if it is shown that the complainant is similarly situated with other persons distinguished by the statutory classification. See, e.g., F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S. Ct. 560, 64 L. Ed. 989 (1920); Note, Developments in the Law - Equal Protection, 82 Harv.L.Rev. 1065, 1076 (1969). Chambers and Epps have failed to argue in any manner that their children are similarly situated with children of parents who do not receive welfare assistance. It is true that the complaint asserts that both groups of children are not of working age. Beyond that allegation, however, there is no similarity between the children whose parents receive welfare benefits and those children whose parents do not. Indeed, there is an essential dissimilarity between the two groups of children: children who are required to produce social security numbers are actually receiving an AFDC grant themselves, while the other group of children are obviously not receiving any welfare monies. Thus, the mere fact that certain children who directly receive welfare assistance, and other children who receive no such assistance, are not of working age is not enough to establish that they are similarly situated for equal protection purposes.
The equal protection claim in the complaint herein suggests that the only dissimilarity exists between parents who receive welfare assistance and parents who do not; and that the children of these parents are similarly situated in the broad sense of not being of working age. As indicated above, the claim ignores an essential difference between the two groups of children, namely, that those children whose parents are receiving AFDC assistance are also themselves direct recipients of such assistance. The dissimilarity engendered by the fact that the children before me are receiving AFDC assistance is controlling when viewed against the backdrop of the purpose of 42 U.S.C. § 602(a)(25). See generally, Tussman & tenBrock, The Equal Protection of the Laws, 37 Calif.L.Rev. 341, 346 (1949). As hereinbefore noted, that purpose is to permit the convenient identification of persons receiving AFDC benefits. That the children before me are themselves receiving such assistance constitutes the critical lack of similarity between those children and other children, not of working age, who are not welfare recipients.
By way of comparison, an equal protection claim would be stated in a complaint if it were charged that a statute or regulation required that male children receiving AFDC assistance furnish social security numbers but did not impose the same obligation on female children also receiving AFDC benefits. Since the equal protection claim at bar does not demonstrate that the federal and state regulations draw a distinction between children who are similarly situated, it is unlikely that the claim will be sustained at final hearing. Since the children before me are not similarly situated with other children, not of working age, the contention that the distinction between the children urged in the complaint has no rational basis does not merit consideration.
PROCEDURAL DUE PROCESS
Chambers claims that her rights to procedural due process under the Fifth and Fourteenth Amendments were violated when her AFDC benefits were terminated without prior notice that the termination was ordered because of her refusal to obtain and submit social security numbers for her children. Her claim rests upon the decision of the Supreme Court in Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970), wherein it was held that AFDC benefits could not be terminated without prior notice and an opportunity to be heard. Chambers does not attack the fair hearing which she attended on May 4, 1976.
It will be recalled that AFDC benefits to Chambers and her children were terminated because of the inability of the Essex County Welfare Board to locate her. Of course, Chambers concedes that this was due to her failure to notify the Essex County Welfare Board that she would be hospitalized. Thus, her AFDC benefits had not been terminated because of her failure to obtain and supply social security numbers for her children.
It will also be recalled that the Notice which had been forwarded to her residence essentially indicated that all AFDC benefits would be terminated because of the inability of the Welfare authorities to locate her. The Notice also informed her that she could request a fair hearing prior to the effective date of termination. Chambers does not challenge the Notice as an adequate means of informing her that AFDC benefits were about to terminate due to the inability of the Essex County Welfare Board to locate her. While Chambers asserts that she ultimately contacted the Essex County Welfare Board by telephone and informed them that she had been in the hospital, no request was ever made for a fair hearing. Therefore, all AFDC benefits to Chambers and her children were terminated on March 31, 1976. It should be noted that Chambers does not claim that her telephone communication to the Essex County Welfare Board, informing the authorities of the reason for her absence from home, should have precluded the termination of AFDC benefits. She was obviously aware from the Notice that all AFDC benefits were about to be terminated, and that such termination could be stopped only if she prevailed at a fair hearing. Yet, no fair hearing was ever requested by her prior to the termination of AFDC benefits on March 31, 1976.
After AFDC benefits had been terminated because of the failure of the Essex County Welfare Board to locate Chambers, she was visited by a caseworker who wanted to assist her in reapplying for AFDC assistance. During the visit the caseworker orally notified Chambers that the Essex County Welfare Board would not renew AFDC benefits unless she obtained and submitted social security numbers for her children.
Certain observations are immediately evident from the above undisputed facts. First, AFDC assistance to Chambers was not terminated because of her failure to obtain and supply social security numbers for her children. The termination occurred because she had gone into the hospital without notifying the welfare authorities that she would be absent from her residence. Second, if she had requested a fair hearing, as indicated in the Notice, prior to the termination, the Essex County Welfare Board may not have stopped the AFDC assistance. Since the social security numbers were not requested until after AFDC benefits to Chambers and her family were terminated, the social security numbers might not have become an obstacle to renewed AFDC assistance had she requested a fair hearing and explained her absence from home. Third, Chambers does not take issue with the fact that the termination hearing was properly conducted and for the reason stated in the Notice.
Under the above circumstances, the court must reject Chambers' procedural due process argument. AFDC benefits to Chambers and her children were not terminated due to her failure to obtain social security numbers for her children. At most, it may be said that AFDC benefits were not renewed because of her position as to the social security numbers. I cannot understand how Chambers can even complain about the non-renewal of AFDC assistance on the basis of her failure to obtain and supply social security numbers for her children when she might not have been in such a situation had she requested a fair hearing prior to March 31, 1976 with respect to the reason for the proposed termination. And yet she was not concerned enough to request a fair hearing when faced with the certain termination of AFDC assistance due to her failure to inform the Essex County Welfare Board that she would be in the hospital, and therefore would not be at her residence in the event that a caseworker visited her home during her absence.
Furthermore, when a caseworker came to her home in early April to assist her in reapplying for AFDC assistance, she was actually notified that she would have to obtain and supply social security numbers for her children prior to renewal of AFDC benefits. She requested and attended a fair hearing on that issue whereat she was represented by counsel. She does not attack that hearing. Ultimately, Chambers' position is that AFDC benefits should have been renewed before she was given notice of the requirement that she obtain and supply social security numbers for her children. However, under the circumstances of this case, I reject that position. This court must conclude that the dictates of procedural due process were satisfied when she was given notice of the requirement pertaining to social security numbers when she was visited by a caseworker in April 1976 and subsequently requested and participated in a fair hearing. I perceive no constitutional requirement that AFDC assistance to Chambers and her family be reinstated, and the termination process commence anew, when the facts are clear that Chambers put herself in the position of receiving notice of the requirement of social security numbers after AFDC assistance had ceased, and when the record before me fails in all particulars to suggest that the termination occurred because of her failure to supply the social security numbers.
STATE ADMINISTRATIVE LAW CLAIM
Finally, plaintiffs' claim in their Eighth Cause of Action that the termination of the AFDC assistance violated the official procedure set down in New Jersey Administrative Code § 10:81-24.12 in that they were not afforded the preliminary hearings outlined in that regulation. This claim is without merit. On February 3, 1975, the New Jersey Administrative Code § 10:81-24.12 was superseded by PAM. See 7 N.J.Reg. 105 (March 6, 1975). Since Epps and Chambers appeared at hearings which occurred in April 1976, it is clear that their claim which rests on New Jersey Administrative Code § 10:81-24.12 cannot be sustained. Furthermore, no claim is made that the hearings conducted in April 1976 violated the procedures set forth in PAM. The State defendants' motion to dismiss this Cause of Action for failure to state a claim is granted. However, their motion to dismiss the Seventh Cause of Action is denied. Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957).
For the reasons hereinabove stated, plaintiffs' application for a preliminary injunction, and the motion by the State defendants, are denied.
The foregoing constitutes my findings of fact and conclusions of law.
Counsel for the defendant Secretary of HEW is directed to submit an appropriate form of order within ten days, consented to as to form.