Annette Kali and Valeska K. Wise, Individually and on Behalfof All Persons Similarly Situated, Plaintiffs-appellees, v. Otis R. Bowen, M.d., Secretary of Health and Human Services;franklin Sunn, Director of the Department Ofsocial Services and Housing, State Ofhawaii, Defendants-appellants, 800 F.2d 971 (9th Cir. 1986)

Appellants Otis Bowen, Secretary of Health and Human Services,¹  and Franklin Sunn, Director of the Hawaii Department of Social Services and Housing, appeal the district court's summary judgment for the plaintiff class in its action under 42 U.S.C. § 1983 (1982). Subject matter jurisdiction exists under 28 U.S.C. § 1331 (1982). The plaintiff class challenges federal and state regulations that the appellants promulgated, claiming the regulations exceed the scope and intent of the enabling statute, 42 U.S.C. § 602(a) (39),²  part of the Deficit Reduction Act. This provision changed the conditions of eligibility for benefits under state Aid to Families with Dependent Children (AFDC) programs for certain "three-generation" families living together.

The statute requires that in evaluating the need of the grandchild in such families, the state must take into account the income of the grandparent when the grandchild's parent is "under the age selected by the State pursuant to section 606(a) (2) of this title." Section 606(a) (2) states the age requirement for dependency under the AFDC program: all children under eighteen are dependent, and states are given the option of extending dependency to eighteen-year-olds who are full-time students expected to complete schooling before nineteen. 42 U.S.C. § 606(a) (2) (1982).³  Hawaii has selected this second option. Hawaii Administrative Rule Sec. 17-640-4.

Both the federal government and the state of Hawaii have enacted regulations that construe section 602(a) (39) as applying to parents classified as minors under the regulations implementing section 606(a) (2), "without regard to school attendance."⁴  The effect is that the grandparent's income is deemed available to the dependent grandchild in all three-generation families living together in which the intermediate parent is eighteen, rather than only in those families where the eighteen-year-old parent satisfies the school attendance requirement.

The plaintiff class consists of eighteen-year-old parents in Hawaii who are either not full-time students or not reasonably expected to complete their school program before reaching nineteen, who live in the same home as their parents, and whose AFDC benefits have been or will be reduced, terminated or denied under these regulations. The class brought an action under 42 U.S.C. § 1983, challenging the federal and Hawaii regulations as exceeding the scope and intent of section 602(a) (2), (39). The district court granted the class's motion for summary judgment, declared that the federal regulation was invalid, and permanently enjoined defendants from enforcing the federal and the Hawaii regulation.

We affirm the judgment, adopting the reasoning of the district court in Morrison v. Heckler, 602 F. Supp. 1482 (D. Minn. 1984), aff'd, 787 F.2d 1285 (8th Cir. 1986).

AFFIRMED.