Jackson v. O'Bannon

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

The Department of Public Welfare of Pennsylvania [hereinafter DPW], the agency which administers that state’s Social Security Act program of Aid to Families with Dependent Children [hereinafter AFDC], 42 U.S.C. §§ 601 et seq. (1976 & Supp. II 1978), has a policy which bars duplicate payments of AFDC benefits on behalf of a child who has moved to the home of another relative. Plaintiff filed suit against Helen O’Bannon, Secretary of the Department of Public Welfare of Pennsylvania, and Don Jose Stovall, Executive Director of the Philadelphia County Board of Assistance, claiming that this policy violates the Social Security Act, federal regulations issued thereunder, and the equal protection and due process clauses of the United States Constitution.¹ This is an appeal from the order of the district court granting summary judgment on behalf of defendants. We will affirm that judgment for the reasons set forth below.

II.

Until the latter part of February, 1979, five year old Tarik Jackson lived in Philadelphia with his mother, Robin Jackson, who at that time was receiving AFDC benefits for herself and her four children. Tar-ik’s father, Wayne Jackson, maintained a separate residence. Shortly before the events in question, Mr. Jackson’s unemployment benefits terminated. Thereafter, on February 21, 1979, Tarik moved to his father’s home. Mr. Jackson, who would not otherwise have qualified for AFDC benefits,² applied for those benefits on March 1, 1979, requesting a grant for himself as the caretaker parent and for Tarik as a dependent child. To confirm the change in Tarik’s living arrangements, Mr. Jackson presented to the Welfare Department a notarized statement of Mrs. Jackson stating that on February 21, 1979 she had given Mr. Jackson “full custody of their son.” Mr. Jackson was determined eligible for AFDC benefits for himself effective March 1, 1979. His grant at that time was not increased to include benefits on behalf of Tarik because Tarik’s benefits had already been paid to his mother on February 27,1979.³ Pennsylvania’s benefits are paid twice a month, prospectively for the coming period.

On the next semimonthly payment date, March 13, 1979, Tarik’s grant of $51.00 was sent to his mother rather than his father, because DPW was complying with a requirement imposed judicially and by federal and state regulations that a recipient be given at least ten days’ prior notice of an adverse action, which includes removal of a child’s benefit. DPW sent the required notification of its intended termination of benefits for Tarik to Mrs. Jackson the day after it received initial notice of the change from Mr. Jackson. On March 28, 1979, DPW terminated the payment of benefits to Tarik’s mother and, as of that same date, Mr. Jackson was paid the AFDC benefits on Tarik’s behalf.⁴

Mr. Jackson claims that notwithstanding Pennsylvania’s payment of Tarik’s benefits to his mother, the state was bound to award him a grant on Tarik’s behalf as of March 1, 1979, when he gave the state notice of Tarik’s change in custody. It is the Pennsylvania policy precluding such duplicate payment which is the subject of the challenge in this lawsuit.

III.

DPW concedes that it has a policy which prohibits duplicate payments on behalf of a child who is the subject of a change in custodial relative. That policy stems in part from a Pennsylvania regulation that provides no person may be a member of more than one AFDC grant group, Pa.Code tit. 55, § 171.21(b). Pennsylvania apparently considers children eligible for AFDC as one grant group with their custodial relative. Therefore, under Pennsylvania’s policy, until Tarik could be removed from his mother’s grant group, he could not be added to his father’s grant group.

In order to consider the parties’ respective contentions that the Pennsylvania policy either conflicts with or is consistent with the Social Security Act and its regulations, it is necessary to consider the structure of the AFDC program. It was succinctly described in King v. Smith, 392 U.S. 309, 316-17, 88 S.Ct. 2128, 2132-33, 20 L.Ed.2d 1118 (1968), and Shea v. Vialpando, 416 U.S. 251, 253-54, 94 S.Ct. 1746, 1750, 40 L.Ed.2d 120 (1974); the history behind some of the relevant provisions is discussed in King v. Smith, 392 U.S. at 320-26, 88 S.Ct. at 2134-2138. Under the Social Security Act, the federal government provides matching funds to assist participating states in providing financial assistance to needy dependent children and the parents or relatives who live with and care for them. States which desire to take advantage of such federal funds must submit AFDC plans in conformity with the Act and the regulations promulgated thereunder by the Department of Health, Education, and Welfare. The program is, however, administered by the states, which are given broad discretion in determining both the standard of need and the level of benefits. Shea v. Vialpando, 416 U.S. at 253, 94 S.Ct. at 1750.

HEW regulations require that each AFDC plan must specify a statewide standard of need, which is the amount deemed necessary by that state to maintain a hypothetical family at a subsistence level. Both eligibility for AFDC assistance and the amount of benefits to be granted an individual applicant must be based on a comparison of the state’s standard of need with the income and resources available to that applicant, 45 C.F.R. § 233.20(a)(2)(i) (1979).

Each party to this dispute cites different sections of the Social Security Act and regulations issued thereunder in support of its position. Plaintiff relies primarily on 42 U.S.C. § 602(a)(7) (1976), and 45 C.F.R. §§ 233.20(a)(3)(ii)(D) and 233.90(a) (1979). The section of the Social Security Act he refers to provides, in relevant part:

(a) . . .A State plan for aid and services to needy families with children must .

(7) . . . provide that the State agency shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children

42 U.S.C. § 602(a)(7) (1976).

Under the regulations implementing this statutory section, it is required that:

(a) . A State Plan must .

[(3)](ii) Provide that, in determining need and the amount of the assistance payment, .

(D) Net income available for current use and currently available resources shall be considered; income and resources are considered available both when actually available and when the applicant . . . has a

legal interest in a liquidated sum and has the legal ability to make such sum available for support. .

45 C.F.R. § 233.20(a)(3)(ii)(D) (1979). Another regulation provides:

In establishing financial eligibility and the amount of the assistance payment, only such net income as is actually available for current use on a regular basis will be considered, and the income only of the parent [legally obligated to support the child under state law] will be considered available for children in the household in the absence of proof of actual contributions^]

Id. § 233.90(a)(1).

Plaintiff stresses that these provisions manifest that one of the fundamental principles of the AFDC program is that eligibility for assistance and the payment of benefits are to be based upon actually available income. He claims that DPW knew that he had no income with which to support Tarik, and that at a conference before the district court on plaintiff’s request for a Temporary Restraining Order, held on March 19, 1979, Tarik’s mother advised the court that she no longer had the $51.00 she had received as assistance for Tarik on March 13, 1979. Therefore, he concludes, DPW’s refusal to provide a grant for Mr. Jackson to meet Tarik’s needs deprived him of income for approximately a month, in violation of the state’s responsibility under the Act and regulations.

Plaintiff relies on a series of Supreme Court cases which held that state statutes and regulations which presumed income was available to an AFDC recipient that was not actually available conflicted with the Social Security Act and the regulations promulgated pursuant thereto. In King v. Smith, supra, the Court voided an Alabama regulation which regarded an able-bodied man with whom the mother cohabited as a “parent”, thereby depriving the child of AFDC eligibility on that basis alone. In Lewis v. Martin, 397 U.S. 552, 90 S.Ct. 1282, 25 L.Ed.2d 561 (1970), the Court held that California could not presume that income of a non-adoptive stepfather or a man assuming the role of a spouse was available to a child. In Van Lare v. Hurley, 421 U.S. 338, 95 S.Ct. 1741, 44 L.Ed.2d 208 (1975), the Court reached a similar decision with regard to New York regulations authorizing a reduction in AFDC shelter allowance when non-rentpaying lodgers resided in the home.

According to plaintiff, Pennsylvania’s regulation makes the impermissible presumption that Tarik’s mother, the former caretaker relative, is providing for his support with the funds received. Since, plaintiff continues, the funds were not in fact available to Tarik, the line of cases referred to above forbids that presumption.

Defendants, for their part, direct our attention to the statutory provision which requires that “aid to families with dependent children shall ... be furnished with reasonable promptness to all eligible individuals,” 42 U.S.C. § 602(a)(10) (1976). They claim, and the district court found, that defendants met their statutory obligation by furnishing assistance to Tarik with reasonable promptness. Defendants were first notified of the change in Tarik’s living arrangements on March 1, 1979. The payment dates for AFDC checks for both households, those of Robin Jackson and Wayne Jackson, were March 13 and March 28, 1979. Defendants were obliged, as a requirement of due process and the applicable federal and state regulations, to give Robin Jackson ten days’ notice before her grant could be reduced.⁵ Although she might have signed a waiver of that notice or consented to the action, she did not do so. Because checks are mailed a day in advance of the payment date, any changes in an assistance check must be made no less than two days before the date the check is due to be received. Therefore, defendants could not have processed the notice, waited the ten days, and effected the change in both checks by the March 13 payment date. Accordingly, they argue, March 28, 1979 was the earliest date by which the change could realistically be made, and that was in fact the date by which it was accomplished.

Defendants contend that their action is consistent with the federal regulation which provides that initial payments on behalf of a child who moves to the home of another relative are not available to the new household if benefits for a concurrent period are made to the former caretaker’s household. The relevant regulation provides:

(2) Federal financial participation is available in:

(i) Initial payments made on behalf of a child who goes to live with a relative [as specified in the Act] within 30 days of the receipt of the first payment, provided payments are not made for a concurrent period for the same child in the home of another relative or as AFDC-FC;

(iii) Payments made for the entire month in the course of which a child leaves the home of a specified relative, provided payments are not made for a concurrent period for the same child in the home of another relative or as AFDC-FC[.]

45 C.F.R. § 233.90(c)(2) (1979).

Defendants argue that this regulation precludes federal reimbursement for duplicate assistance payments on behalf of any child to one specified relative for the same period for which that child has already received assistance paid to a different specified relative. They contend that this provision is designed to prevent potential welfare fraud, misuse of public funds, and overpayment of assistance which could be created by parents who move a child from one home to the other each month so that both parents can receive benefits. They argue that federal reimbursement would not be available for such duplicate payments, and that therefore Pennsylvania is not obliged to provide them.

Defendants emphasize that Tarik was not denied all benefits. In addition to some food stamps and a medical assistance card, DPW gave Tarik’s father a supplemental payment of $32 which was the difference between Tarik’s share in his mother’s grant and Tarik’s share in his father’s grant. This differential arises because, under the Pennsylvania plan, increments in the family grant with the addition of each person to the household decrease as the family size increases.⁶

Plaintiff’s view of the AFDC program would require that we choose between the important societal goal of protecting needy dependent children and the legitimate governmental interest in protecting the integrity of the welfare programs. We do not believe these two interests are irreconcilable, or that Pennsylvania’s policy as applied to the facts in this case fails to adequately accommodate both interests.

The precedent on which plaintiff relies establishes that a presumption which has no basis in fact or law cannot be sustained. State statutes and regulations denying eligibility where the mother in a fatherless household cohabited with another man were invalidated as inconsistent with the Social Security Act because they presumed support which was not forthcoming and which the “substitute father” had no legal obligation to provide. Van Lare v. Hurley, supra, Lewis v. Martin, supra, King v. Smith, supra. We may assume, for analytic purposes, that Pennsylvania’s policy operates in effect as a presumption that a former caretaker parent who has received a grant on the child’s behalf will disburse those funds in the child’s behalf. However, unlike the facts at issue in the Supreme Court cases, here the parent who received the grant had a legal obligation to support the child on whose behalf the grant was made.

In all of the above cases this factor was emphasized by the Court. In King v. Smith, the first of that line of cases, the Court held that Alabama could not equate the “substitute father” with the absent father. It said that “children of fathers living in the home are in a very different position from children of mothers who cohabit with men not their fathers: the child’s father has a legal duty to support him, while the unrelated substitute father, at least in Alabama, does not. We believe Congress intended the term ‘parent’ in § 406(a) of the Act, 42 U.S.C. § 606(a), to include only those persons with a legal duty of support.” 392 U.S. at 327, 88 S.Ct. at 2138. See also id. at 329, 88 S.Ct. at 2139. Similarly, in Lewis v. Martin, 397 U.S. at 560, 90 S.Ct. at 1286, the Court continued to observe the distinction, holding that even when the resource attributee is a stepfather, “California may not consider the child’s resources to include either the income of a nonadopting stepfather who is not legally obligated to support the child as is a natural parent . . . In Van Lare v. Hurley, the Court summarized its holdings in the prior two cases as follows: “King v. Smith, supra, and Lewis v. Martin, supra, construe the federal law and regulations as barring the States from assuming that nonlegally responsible persons will apply their resources to aid the welfare child.” 421 U.S. at 347, 95 S.Ct. at 1747 (emphasis added).

Thus, this case differs from the precedent relied on by plaintiff in two important respects. First, Mrs. Jackson was not a person without legal liability to Tarik. On the contrary, she was his mother and as such had a legal obligation to contribute to his support, whether or not he resided in her household, particularly when she was the recipient of government funds specifically designated for that purpose. Second, the presumption involved is one of application of government benefits, not independent income or resources as was true in the prior cases. Under the statute a minor cannot be given payments directly; there must always be a representative payee, usually the custodian, who is obliged to use the money received on behalf of the child. 42 U.S.C. § 606(b) (1976 & Supp. II 1978). The entire AFDC program relies on the integrity of the parent or custodian who is expected to disburse the child’s grant in accordance with the statutory purpose. While there may be instances in which this statutory assumption is not realized in fact, the state is entitled to develop its plan according to the premise that parents or custodians will carry out their obligations. In this regard, Tarik stands on no different plane than a child living with a parent who has diverted funds meant for the child’s use. When the state has reason to believe that payments are not being used “in the best interests of the child,” the statute provides for a series of steps to be taken, including counseling and guidance, notice of possible substitution of custodian, appointment of a guardian or legal representative, or imposition of criminal or civil penalties. 42 U.S.C. § 605 (1976). Significantly, there is no provision for a duplicate payment to make up the deficiency even if the child is shown to be in need.

Although we do not agree with plaintiff that the specific provisions he cites compel the duplicate payments, neither do we agree with defendants that the regulation which they cite explicitly forbids such payments. The regulation, 45 C.F.R. § 233.-90(c)(2) (1979), provides that federal financial participation will be available for payment to households in four discrete situations. Two of these four situations are (i) for a short period before a child goes to live with a specified relative and (iii) for a short period after a child has left the home of the relative.

There have been only scant references to this regulation in the reported cases, but they indicate that the regulation pertains to a situation inapposite here. In Burns v. Alcala, 420 U.S. 575, 95 S.Ct. 1180, 43 L.Ed.2d 469 (1975), the Court referred to the provisions of the regulation as authorizing “temporary aid, at the option of the States, to individuals in the process of gaining or losing eligibility for the AFDC program. For example, one of the accompanying rules authorizes States to pay AFDC benefits to a relative 30 days before the eligible child comes to live in his home. 45 C.F.R. § 233.90(c)(2).” Id. at 584-85. The rationale for the regulation which makes federal reimbursement available in instances where technical eligibility is not present has been explained as follows:

Under section 233.90(c)(2)(i), AFDC payments can be made to an eligible relative up to 30 days before the child is placed in the care of that relative. Since at the time a relative receives such payments he is not caring for a “dependent child,” the payments are obviously beyond the statutory parameters. Just as obviously, however, such payments will enable the relative to purchase necessary food, clothing, toys and household items so that when the child does come into the relative’s custody, proper care can begin immediately. Under section 233.90(c)(2)(iii), a relative can receive payments for an entire month, even if the child leaves the eligible family situation sometime during the same month. Again, technical eligibility may be lost with the child’s departure, but not absent are the obligations to pay for major expenses, such as rent and furniture, incurred in part for the child’s benefit. In addition, the regulation avoids administrative problems inherent in attempting to allocate payments for less than a month.

Parks v. Harden, 504 F.2d 861, 875 (5th Cir. 1974) (Ainsworth, J., dissenting) (footnotes omitted), vacated and remanded, 421 U.S. 926, 95 S.Ct. 1651, 44 L.Ed.2d 84 (1975).

Accordingly, the language of the regulation does not resolve the issue of construction presented here since it does not point decisively in either direction. Nor can we find much assistance in the statutory provisions and regulations cited by the plaintiff which require that eligibility and the amount of benefits be determined on the basis of actually available income. They are not determinative in this case because there is no issue of eligibility presented, since it is conceded that Tarik was eligible for assistance, and the amount established as his monthly benefit is not challenged. These regulations stem from the central principle of the aid program that a participating state may not deny aid to persons who come within the federal standard of eligibility. See Burns v. Alcala, 420 U.S. at 578, 580, 95 S.Ct. at 1184. In this case, however, the state did not deny aid to Tar-ik. Aid was given on his behalf to a legally responsible parent. Unlike the facts presented in Cooper v. Laupheimer, 316 F.Supp. 264 (E.D.Pa.1970) (three judge court), Pennsylvania is not reducing current payments to the child because of the mother’s misappropriation of any payments. In that case the court held that withholding current benefits for past mistakes ignored the reality of public welfare — the necessity of current payments for current needs.

The premise of the dissenting opinion is that “only Wayne Jackson’s income may be considered in determining Tarik’s eligibility for AFDC benefits.” (dissenting op. typescript at 342). We believe the dissent mis-perceives the issue, since the issue is not whether Tarik was eligible for benefits, which he concededly was, but whether he was eligible for double benefits. Thus the regulation on which the dissent relies is inapposite since it applies by its terms only for the purposes of “establishing financial eligibility and the amount of the assistance payment,” 45 C.F.R. § 233.90(a)(1), neither of which is at issue here. The Act requires that the states must furnish aid to a needy dependent child. We cannot read it to require that the state must furnish such aid twice.

There is some support for our view of the statutory scheme in the Secretary’s regulation which authorizes federal participation in payments to households before the child arrives or after s/he leaves, 45 C.F.R. § 233.90(c)(2) (1979). Although we have found the literal language of that regulation inapplicable, we believe that the language of subsections (i) and (iii) permitting both the initial payment and the tag end payment only when “payments are not made for a concurrent period for the same child in the home of another relative or as AFDC-FC”, id., reflects the Secretary’s recognition of a Congressional desire that duplicate payments should not be knowingly made. If plaintiff is correct that the Act must be construed to require immediate duplicate payment once a child is transferred, albeit the transfer was a consensual one between parents, there may be an incentive to increase the number of relatively short term transfers in order to augment the total payments made to various family members.

This would undermine the state’s efforts to make all reasonable efforts to preserve the financial integrity of the social welfare program. We have previously noted that, “Vigorous efforts to protect the integrity of welfare programs are necessary to assure that the public’s dollars go only to those whose real need qualifies them to receive this money.” Louise B. v. Coluatti, 606 F.2d 392, 402 (3d Cir. 1979). Congressional intent to prevent fraud is evident in the statutory provision making criminal the commission of a fraud with respect to the program. 42 U.S.C. § 1307 (1976). See Rush v. Smith, 573 F.2d 110, 112 (2d Cir. 1978). Regulations promulgated by the Secretary require states to establish and maintain methods to determine situations in which fraud may exist. 45 C.F.R. § 235.110 (1979). We believe intentional duplicate payments represent an unwarranted diversion of the program’s funds similar to that which occurs in instances of fraud and that the Social Security Act should not be construed to oblige participating states to make such payments.

Plaintiff attempts to analogize this situation to that presented when the state duplicates payment of a check which has been reported lost or stolen.⁷ The circumstances are not apposite, since in the latter instance there is no knowing duplication by the state. Plaintiff also raises the possibility that Pennsylvania’s policy could operate to deprive the new custodial parent of the benefit of the child’s payments for a lengthy period of time if the former parent chooses to appeal the change in the child’s designee. That situation would be a matter of substantial concern, and would present a substantially different fact predicate than that which is before us.⁸ The Act attempts to deal with defendant’s hypothetical situation by requiring that payment be made with reasonable promptness, 42 U.S.C. § 602(a)(10) (1976). As we noted previously, here that statutory requirement was met.

In summary, we hold that Pennsylvania’s policy which precludes duplicate payments does not violate the Social Security Act or it regulations when applied in the situation before us. We stress the following considerations: The transfer of Tarik between his parents was a consensual one. There was no finding that it was necessitated by any improper care in his prior household. Pennsylvania would have paid his benefits to his father on his behalf effective March 1, 1979 as requested had his parents either given Pennsylvania prospective notice of the impending custody change or had his mother waived the requirement of ten days’ prior notice before a change in the check can be effected. That notice is a requirement of due process as enunciated both in Brown v. Wohlgemuth, 371 F.Supp. 1035, 1039 (W.D.Pa.), aff’d mem., 492 F.2d 1238 (3d Cir. 1974), and by the applicable state and federal regulations. Therefore Pennsylvania had no discretion to shorten the time in the absence of cooperation by the parents. The requirement of ten days’ notice, together with one day to mail the notice, and two days thereafter to process the change in the name on the check, made it impossible for Pennsylvania to effectuate the change before the March 28, 1979 payment. Under the circumstances, that change was made with reasonable promptness. Tarik was never declared ineligible and his benefits were never cut off. Pennsylvania may validly presume that payments given to a legally obligated parent on behalf of the child will be used in accordance with that obligation. We see nothing in the statute that would require that Pennsylvania make another payment to Tarik’s father on his behalf for the short period needed to protect the due process rights of the former custodian and to process the change in the name of the payee on the check.

IV.

Our rejection of plaintiff’s contention that Pennsylvania’s policy violates the Social Security Act and regulations requires us to meet his claim that the policy also violates the due process and equal protection clauses of the Fourteenth Amendment, an issue which the district court did not address. Plaintiff claims that defendants employ a conclusive presumption that income being paid to a non-caretaker relative is available for the use of a child living in another household, and that this denies plaintiff due process of law. He also claims that Pennsylvania’s scheme establishes a classification which violates equal protection of the laws because benefits are paid to a foster care family when the state removes a child from a home but not to a relative who obtains custody of a child.

We will resist the temptation to discourse at length on the recent trend towards merging the two distinct guarantees of individual rights provided by the due process clause and the equal protection clause. See Comment, Equal Protection and Due Process: Contrasting Methods of Review Under Fourteenth Amendment Doctrine, 14 Harv. C.R.C.L. L.Rev. 529 (1979). We have recently had occasion to review the applicable legal principles. See Hopkins v. Kelsey-Hayes, Inc., 628 F.2d 801, at 811 (3d Cir. 1980), and Maimed v. Thornburgh, 621 F.2d 565, 569 (3d Cir. 1980).

Plaintiff’s attempt to have us invalidate Pennsylvania’s policy on the ground that it employs a conclusive presumption and therefore denies plaintiff due process of law is unavailing because the Supreme Court has indicated, in a recent line of cases, that the irrebuttable presumption analysis is inapplicable to challenges to aspects of social welfare programs. The Court, using a combined due process and equal protection analysis, identified the “rational basis test” as the appropriate scope of scrutiny. In Weinberger v. Salfi, 422 U.S. 749, 768, 95 S.Ct. 2457, 2468, 45 L.Ed.2d 522 (1975), the Court stated:

[T]he Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.

Thus, the Court has sustained welfare classifications, presumptions, and standards of need against constitutional challenge provided they have a rational basis. See Califano v. Aznavorian, 439 U.S. 170, 99 S.Ct. 471, 58 L.Ed.2d 435 (1978); Califano v. Jobst, 434 U.S. 47, 98 S.Ct. 95, 54 L.Ed.2d 228 (1977); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). Using this relaxed standard of scrutiny, we see no difficulty in upholding Pennsylvania’s policy. As we noted in the prior statutory discussion, it avoids the possibility of collusive arrangements between relatives, and it can also be viewed as encouraging planning for the child’s custody.

Turning next to plaintiff’s equal protection argument, we again must ask whether the classification is rationally related to a legitimate governmental interest. When Pennsylvania’s justification is examined, it is apparent that there is indeed a basis for treating differently the payments of benefits when the child is placed in the custody of a foster care family and such payments when the child has been eonsensually transferred to the home of another relative. In the foster care family situation, it is unlikely that collusive arrangements will present any problem. Also, it is more likely that amicable arrangements to transfer benefits already paid can be made when the transfer is consensual than when the transfer is to a foster care family. Furthermore, the federal regulations make the distinction between placement with a foster care family and consensual transfer between parents since they provide that the ten day notice may be dispensed with when, inter alia, “An AFDC child is removed from the home as a result of a judicial determination, or voluntarily placed in foster care by his legal guardian,” 45 C.F.R. § 205.-10(a)(4)(ii)(G) (1979). There is no exception to notice covering the instant situation, and plaintiff does not suggest notice was not required.

Our decision in Medora v. Colautti, 602 F.2d 1149 (3d Cir. 1979), does not compel a different result. There we held that denial of benefits to persons who were blind, aged, or disabled for reasons unrelated to their need violated the equal protection clause. Here, there has been no denial of benefits on behalf of Tarik, and thus Medora is inapplicable.

For the foregoing reasons, we will affirm the judgment of the district court. Each party is to bear its own costs.

1 . Plaintiffs complaint alleges that the cause of action arises under 42 U.S.C. § 1983 and that there is federal jurisdiction pursuant to 28 U.S.C. § 1343(3). If plaintiffs constitutional claim is substantial, that section supports federal jurisdiction as to it and there would then be pendent jurisdiction over plaintiffs claim that Pennsylvania’s policy conflicts with federal law. Hagans v. Lavine, 415 U.S. 528, 536, 94 S.Ct. 1372, 1378, 39 L.Ed.2d 577 (1974). “A claim is sufficient to confer . . . jurisdiction . . . if it is not ‘wholly insubstantial’ or ‘wholly frivolous’.” Williams v. Wohlge-muth, 540 F.2d 163, 166 (3d Cir. 1976). Unlike the constitutional claim in Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979), which rested only on the supremacy clause, here plaintiff alleges violations of the due process and equal protection clauses of the Fourteenth Amendment. Although we ultimately reject plaintiff’s constitutional challenge, the specific question presented has not previously been ruled upon, nor has the Pennsylvania policy in question been the subject of any prior decision by this court. Accordingly, we find that the plaintiff has raised a substantial constitutional claim, that the district court had jurisdiction under 28 U.S.C. § 1343(3) (1976), and that we must first consider plaintiff’s pendent statutory claim. Hagans v. Lavine, supra.

2 . The AFDC program provides benefits financed by the federal government to “needy dependent children and the parents or relatives with whom they are living.” 42 U.S.C. § 601 (1976). These terms are defined in 42 U.S.C. § 606(a) and (c) (1976). Tarik was concededly a “dependent” child entitled to benefits. When Tarik moved in with his father, his father then became eligible for benefits on his own behalf as the relative with whom the dependent child was then living.

3 . Because DPW computes the amount of benefits on the basis of the number of members in a household, Mr. Jackson’s two member household would have qualified for a monthly benefit of $247 ($164 for the father and $83 for Tarik). Jackson’s assistance was therefore $83.00 per month less than it would have been had DPW included benefits for his son in the grant.

4 . Mr. Jackson formally petitioned the Philadelphia Family Court to grant him legal custody of his son on March 20, 1979. The court awarded him custody after holding a family conference in April.

5 . In Brown v. Wohlgemuth, 371 F.Supp. 1035, 1039 (W.D.Pa.), aff’d mem., 492 F.2d 1238 (3d Cir. 1974), the court held that DPW violated the rights of AFDC recipients to due process and under the applicable regulations when it terminated their regularly scheduled payment without affording them adequate notice.

The federal regulations provide:

(4) In cases of intended action to discontinue, terminate, suspend or reduce assistance:

(i) The State or local agency shall give timely and adequate notice. . . Under this requirement:

(A) “Timely” means that the notice is mailed at least 10 days before the date of action, that is, the date upon which the action would become effective;

(B) “Adequate” means a written notice that includes a statement of what action the agency intends to take, the reasons for the intended agency action, the specific regulations supporting such action, explanation of the individual’s right to request an evidentia-ry hearing (if provided) and a State agency hearing, and the circumstances under which assistance is continued if a hearing is requested!.]

45 C.F.R. § 205.10(a)(4)(i) (1979).

The state code provides:

[(b)](iii) . The Advance Notice ... will be mailed at least ten days before the proposed action is taken. This means that the following will occur:

(A) For cash grants, the [notice] will be sent to the client promptly, but no later than ten calendar days before the telephone hold deadline of the payment date for the action decided on by the County Assistance Office.

Pa.Code tit. 55, § 133.4(b)(iii).

6 . See Pa.Code tit. 55, § 175.23(a). In Dan-dridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), the Court upheld payment of a family maximum under regulations which provide that increments for additional family members become proportionately smaller until payments reach a state defined maximum grant level.

7 . Although Pennsylvania’s regulations provide that the state will not issue replacement checks to recipients who have not received a check, lost an unendorsed check, or destroyed an endorsed or unendorsed check, they also provide that DPW may authorize from the Emergency Fund a one-time grant in the amount of the original grant if the nonreceipt was reported within a month of the date of the original check and the recipient is living in Pennsylvania. Pa. Code tit. 55, § 231.24(b)(l)(ii). Upon the report of a lost or stolen check an investigation is initiated by the relevant state department into the circumstances of the nonreceipt. Id. § 231.24(b)(1).

8 . Plaintiff has alluded to evidence in the proceeding below that a change in designee in a family not a party to this suit was not effected for a substantial time. This suit, although purportedly filed on behalf of a class, was never certified as a class action. Neither party has raised the class issue on appeal, and therefore the only factual situation properly before us concerns the time lag with respect to Tarik and his father. We take this occasion to remind the district courts that Fed.R.Civ.P. 23(c)(1) requires that a class action determination should be made “[a]s soon as practicable after the commencement of an action brought as a class action” which ordinarily should be before a decision on the merits.