Barbara Anne GORRIE, Karen Comnick, Linda Schneider, and Robert Schneider, on behalf of themselves and their minor children, and other persons similarly situated, Appellees, and Jo Anne Heille, Rosa Williams, Jean Sonnenberg, and Linda Garza, on behalf of themselves and their minor children, and other persons similarly situated, Appellees, v. Otis R. BOWEN,* Secretary of the United States Department of Health and Human Services, Appellant, and Leonard W. Levine, Commissioner, Minnesota Department of Human Services. No. 85-5394.

United States Court of Appeals, Eighth Circuit.

Submitted June 12, 1986.

Decided Jan. 16, 1987. Rehearing and Rehearing En Bane Denied April 14,1987.

Carlene Melntyre, Washington. D,C, for appellant.

Martha A. Eaves, St. Paul, Minn., for appellees.

Laurie N. Davison, Minneapolis, Minn., for intervenor Jo Anne Heille.

Before HEANEY and WOLLMAN, Circuit Judges, and BATTEY,** District Judge.

WOLLMAN, Circuit Judge.

The Secretary of Health and Human Services (Secretary) appeals the district court's order enjoining the enforcement of the Secretary's regulation, 45 C.F.R. § 206.10(a)(l)(vii)(B) (1985), requiring that applications for public assistance for dependent children under the Aid to Families with Dependent Children program (AFDC) include siblings living in the same household. We must decide whether the Secretary may require the inclusion of coresident siblings and their child support or Title II Social Security income in an AFDC application. Specifically, the issues in this appeal are, first, whether the regulation is consistent with the language and legislative history of the statute authorizing it: second, whether the regulation conflicts with the law governing Title II Social Security benefits or state authority concerning child support obligations; and, finally, whether the regulation unconstitutionally denies due process rights or effects a taking of private property.

I

The AFDC program is a cooperative federal-state assistance program authorized by Title IV-A of the Social Security Act, 42 U.S.C. §§ 601-615 (1982 & Supp. Ill 1985). The program is administered by state agencies, which submit plans to the federal government for the Secretary's approval. Id. § 602(b). The federal government then reimburses the state for a portion of the funding of the program.

The AFDC program provides assistance to dependent children who meet certain age requirements, id. § 606(a)(2), and who are "deprived of parental support or care." Id. § 606(a)(l). Applicants also must be "needy" to qualify for AFDC assistance. ! Id. § 606(a).

The required contents of a state AFDC plan, including the procedures for determining financial need and eligibility, are set out at 42 U.S.C. § 602(a) (Supp. Ill 1985). Before 1984, the filing unit for AFDC applications was not required to include all coresident family members. Consequently, a family applying for AFDC assistance could exclude members with income from the filing unit to prevent the reduction in the family's AFDC payments that would be caused by including all family members and their income.

Section 2640(a) of the Deficit Reduction Act of 1984, Pub.L. No. 98-369, 98 Stat. 494, 1145 (codified at 42 U.S.C. § 602(a)(38) (Supp. Ill 1985)),^{Footnote 2} amended the AFDC program by requiring that state AFDC plans, in determining the need of a dependent child, must include any parent of the child and any brother or sister of the child who "meets the conditions described in clauses (1) and (2) of section 606(a) of [title 42]," 42 U.S.C. § 602(a)(38) (Supp. Ill 1985), as long as the parent or siblings are living in the same home as the dependent child. The section further requires that "any income of or available for," id., the parent or siblings must be included in the determination of need, "notwithstanding," id., the provisions of Title II of the Social Security Act concerning the obligations of representative payees of Title II beneficiaries. 42 U.S.C. § 405(j) (Supp. Ill 1985).^{Footnote 3}

The Secretary's interim final regulation implementing the statute became effective October 1, 1984. The regulation states that: (vii) For AFDC only, in order for the family to be eligible, an application with respect to a dependent child must also include, if living in the same household and otherwise eligible for assistance: (A) Any natural or adoptive parent, or stepparent (in the case of States with laws of general applicability); and (B) Any blood-related or adoptive brother or sister. 45 C.F.R. § 206.10(a)(l)(vii) (1985) ("family unit filing regulation"). The Commissioner of the Minnesota Department of Human Services issued an Instructional Bulletin consistent with the Secretary's regulation. ^{Footnote 4}

II Barbara Anne Gorrie and other named appellees are the custodial parents of children who do not share a common father. In each family, some of the children receive AFDC assistance and others receive child support payments. Robert Schneider, also a named appellee, is a non-custodial father paying child support for a child living with other children who receive AFDC. Gorrie brought this action on behalf of herself and the other named appellees, their minor children, and a class of all similarly situated individuals in Minnesota. She alleged that the Secretary's family unit filing regulation was invalid on statutory and constitutional grounds, and sought injunctive relief. ^{Footnote 5}

On

April 1,1985, the district court certified the class, ^{Footnote 6} enjoined enforcement of the regulation, and ordered that AFDC applicants or recipients affected by 42 U.S.G. § 602(a)(38) were entitled to a pre-deprivation hearing. Gorrie v. Heckler, 606 F.Supp. 368 (D.Minn.1985) (Gorrie I). Jo Anne Heille and other named appellees are the parents of families in which some of the children receive AFDC assistance and others receive Title II Social Security benefits. ^{Footnote 7}

Heille, on behalf of herself and the other named appellees, their minor children, and a class of all similarly situated individuals in Minnesota, sought to intervene in the action pursuant to Rule 24{a)(2). Fed.R.Civ.P. 24(a)(2). On July 22, 1985, the district court permitted Heiile to intervene, certified the class, ^{Footnote 8} enjoined enforcement of the regulation as to the class, and again ordered that AFDC applicants or recipients affected by 42 U.S.C. § 602(a)(38) were entitled to a pre-deprivation hearing. Gorrie v. Heckler, 624 F.Supp. 85 (D.Minn.1985) {Gorrie II). By an order of September 10, 1985, the district court converted the preliminary injunctions as to both classes into a permanent injunction. Gorrie II, 624 F.Supp. at 92-94.' ill

The first issue we must decide is whether the Secretary's regulation conforms with the statute that it purports to implement. None of the parties disagree that the regulation requires the independently supported coresident siblings of a dependent child applying for AFDC to be included in the application. ^{Footnote 9}

The statute, however, does not explicitly require that independently supported siblings be included in the AFDC application. Therefore, we must review both the language of the statute and its legislative history for indications of Congress' intent on this issue.

In determining how Congress intended this statute to be implemented, we look first to the language of the statute itself. See Heckler v. Turner,  470 U.S. 184, 193, 105 S.Ct. 1138, 1144, 84 L.Ed.2d 138 (1985). The district court found that because the statute incorporated 42 U.S.C. § 606(a)(l) and (2), independently supported children had to be "needy" to be included in an application for AFDC benefits. Gorrie I, 606 F.Supp. at 372. Under this interpreta-

tion, Congress could not have intended independently supported children to be included in AFDC applications because they are not needy. We believe the plain language of the statute is contrary to the district court's conclusion. Congress referred only to siblings who meet the conditions of "clauses (1) and (2) of [42 U.S.C.] section 606(a)." 42 U.S.C. § 602(a)(38) (Supp. Ill 1985). These clauses do not require a child to be needy; that requirement precedes the clauses. Consequently, Congress' reference to sections 606(a)(l) and (2) does not preclude a congressional intent that independently supported children may be included in AFDC applications. Furthermore, the provisions of section 606(a)(2), which require that a child be deprived of "parental support or care," do not conflict with a congressional intent to include independently supported children in AFDC applications. Although independently supported children are not deprived of parental support, they are deprived of the care of a parent; thus they meet the disjunctive requirement of section 606(a)(2).

The statutory language also reveals that Congress intended by adopting section 602(a)(38) to affect both child support payments and Title II Social Security benefits. The statute directly refers to a provision governing Title II benefits, 42 U.S.C. § 4050) (Supp. Ill 1985), in noting that section 602(a)(38) is to be applied notwithstanding the Title II provision. A reading of section 602(a)(38) in conjunction with 42 U.S.C. § 602(a)(8)(A)(vi), also added by the Deficit Reduction Act of 1984 and requiring that state agencies disregard the first fifty dollars of an independently supported sibling's child support payments in determining need, ^{Footnote 10} indicates that Congress intended to reach child support recipients.

B We are further guided in our search for indications of Congress' intent by the legislative history of section 602(a)(38).

In May 1983, the Secretary submitted proposed legislation to the Congress entitled the "Social Welfare Amendments of 1983." The Secretary stated that the proposed bill would establish "uniform rules on the family members who must file together for AFDC," and continued: "In general, the parents, sisters, and brothers living together with a dependent child must all be included; the option of excluding a sibling with income, for example, would no longer be available." Legislative Addendum to Appellant's Brief at lb (Letter from Secretary Heckler to Vice President Bush (May 25, 1983)). The bill's provisions, according to the Secretary, would "more realistically reflect[ ] the actual home situation." Id. The Secretary's summary explanation of the bill stated that the proposal would add "a new requirement that the State include, as a member of the AFDC family * * * the minor siblings of the dependent child * * * if the siblings are, themselves, deprived of parental support or care and under the age limit selected by the State." Id. at 3b (Section-by-Section Summary of Social Welfare Amendments of 1983). The explanation does not state that a child, to be included, must be needy.

The Secretary's proposed legislation was not adopted at the time of its original submission in 1983. The Deficit Reduction Act of 1984, however, enacted substantially similar changes to the AFDC program. The provision that is now section 602(a)(38) was added to the Act by a Senate amendment subsequently accepted by a Conference Committee agreement. The legislative history of the Act includes the Senate Report, which states that under the law

prior to section 602(a)(38) "a family might choose to exclude a child who is receiving social security or child support payu ments." S.Rep. No. 169, 98th Cong., 2d Sess. 980 (Comm. Print 1984). The report also notes that section 602(a)(38) would "end the present practice whereby families exclude members with income in order to maximize family benefits, and will ensure that the income of family members who live together and share expenses is recognized and counted as available to the family as a whole." Id. The Conference Report reiterates that section 602(a)(38) was to require states to include in the filing unit "all minor siblings living with a dependent child who applies for or receives AFDC." H.R. Conf.Rep. 861, 98th Cong., 2d Sess. 1407, reprinted in 1984 U.S.Code Cong. & Admin.News 697, 1445, 2095. The report also shows that section 602(a)(38) was adopted by the Conference Committee with one modification, the fifty dollar child support disregard of section 602(a)(8)(A)(vi). The addition of the disregard supports the view that section 602(a)(38) was meant to reach child support recipients.

The class members argue that the Secretary's construction of the statute, reflected in the regulation, conflicts with the "principle of availability" applicable to the AFDC program. The principle of availability governs the definition of income for purposes of section 602(a)(7). 42 U.S.C. § 602(a)(7) Supp. Ill 1985). The principle prevents the states from "relying on imputed or unrealizable sources of income artificially to depreciate a recipient's need." Heckler v. Turner,  470 U.S. 184, 201, 105 S.Ct. 1138, 1148, 84 L.Ed.2d 138 (1985); see Lewis v, Martin,  397 U.S. 552, 559, 90 S.Ct. 1282, 1285, 25 L.Ed.2d 561 (1970). Section 602(a)(38) requires that any "income of or available for" any independently supported sibling shall be included in making the need determination under section 602(a)(7).

The district court found section 602(a)(38) to contain a requirement that funds available to the independently supported sibling must also be actually available for the family at large before they may be counted in the need determination. Gorrie I, 606 F.Supp. at 371. In turn, the court held that "[wjhether family members 'share expenses' is inherently a factual matter." Id. The district court thus found that Congress did not create a presumption of shared expenses. The district court's approach, however, confuses the issues in this case. If, as the Secretary argues Congress intended, independently supported coresident siblings must apply for AFDC, then their child support payments and Title II benefits may be counted as income. The siblings themselves become applicants, and their own income clearly is actually available to them. The class members' complaint, however, is that the sibling applies as part of a larger family group; thus his income is in some sense imputed to other persons. But the Secretary argues that Congress intended section 602(a)(38) to change the focus of the AFDC need determination away from resources available to individuals and toward the resources available to all of the individuals in an AFDC family. The principle of availability does not prevent Congress from attempting such ends. If the Secretary's understanding of the statute is correct, then this is not a case of a recipient's need being "artificially depreciated," as the availability principle forbids. Rather, it is a case of Congress exercising its power to redirect

the focus of APDC need determinations. ^{Footnote 12}

Cf. Davis v. Lukhard,  788 F.2d 973, 979-80 (4th Cir.), cert, denied sub nom. Staton v. Lukhard, ' U.S. ------, 107 S.Ct. 231, 93 L.Ed.2d 157 (1986). Thus, the central issue remains whether the Secretary's approach is consistent with the statutory language and legislative history of section 602(a)(38). ^{Footnote 13}

The statute and its legislative history indicate that Congress intended that all coresident siblings of a dependent child applying for AFDC and their income, including Title II Social Security benefits and child support, should be counted in determining need and thus eligibility for AFDC assistance. An agency's construction of a statute under its enforcement jurisdiction is generally accorded deference if the construction "has a reasonable basis in law and is consistent with the congressional policy behind the statute." International Nutrition, Inc. v. United States Dep't of Health & Human Seres.  676 F.2d 338, 342 (8th Cir.1982); see Connecticut Dep't of Income Maintenance v. Heckler, All U.S. 524, 532, 105 S.Ct. 22.10, 2215, 85 L.Ed.2d 577 (1985) (agency's construction need not be the only reasonable one); Volkswagenvjerk Aktiengesellschaft v. Federal Maritime Comm'n,  390 U.S. 261, 272, 88 S.Ct. 929, 935, 19 J_.Ed.2d 1090 (1968); Bailey v. Federal Intermediate Credit Bank,  788 F.2d 498, 499-500 (8th Cir.), cert, denied, ' U.S.-------, 107 S.Ct. 317, 93 L.Ed.2d 290 (1986). Although it is persuasive that the Secretary had at least some hand in the genesis of this statute, see International Nutrition, 676 F.2d at 342 (citing Zuher v. Allen,  396 U.S. 168, 192, 90 S.Ct. 314, 327, 24 L.Ed.2d 345 (1969)), the mere fact that he takes a position on its interpretation does not make the interpretation unassailable. Phillips v. Noot,  728 F.2d 1175, 1178 (8th Cir.1984). The Secretary argues that Congress, by passing section 602(a)(38), intended to create a legislative presumption of availability of income as to the individual and as to the family in recognition of the fact that family members who live together most likely share expenses. Consistent with this understanding of the statute, the Secretary's regulation requires that siblings of the dependent child be included in the application for AFDC. Although the statute and legislative history do not say in so many words that siblings must be included in an application, our review of the language and the legislative history of the statute persuades us that the Secretary's regulation is a reasonable interpretation of the intent of Congress and is consistent with the statute. ^{Footnote 14}

IV Appellees argue further that the Secretary's regulation conflicts with the federal statutes governing Title II Social Security benefits and with state authority concerning child support obligations.

The Heille class argues that the family unit filing regulation, and thus the interpretation of section 602(a)(38) that it embodies, is inconsistent with two provisions governing the Title II program. If the class is correct, then a more conciliatory interpretation of section 602(a)(38) than the Secretary's would be appropriate, even though, as we have found, the statutory language and legislative