OTIS R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, APPELLANT V. BEATY MAE GILLIARD, ET AL. No. 86-509 In the Supreme Court of the United States October Term, 1986 On Appeal from the United States District Court for the Western District of North Carolina Jurisdictional Statement PARTIES TO THE PROCEEDING In addition to those named in the caption, the parties are: Philip J. Kirk, Secretary, North Carolina Department of Human Resources; C. Barry McCarty, Chairman, North Carolina Social Services Commission; and Samuel Odell Davis, Lorraine Gilliard, Thomas Gilliard, Dana Gilliard, Gregory Gilliard, Reginald Gilliard, and Samuel Davis, Jr., Gilliard, minors, by their mother and next friend, and all others similarly situated. TABLE OF CONTENTS Parties to the proceeding Opinions below Jurisdiction Constitutional and statutory provisions involved Question presented Statement: A. Statutory and regulatory framework B. Proceedings in this case The question presented is substantial Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G OPINIONS BELOW The decision of the district court holding the relevant provision of the Social Security Act unconstitutional is reported at 633 F. Supp. 1529 (App., infra, 13a-92a). Subsequent decisions and orders of the district court are unreported (App., infra, 1a-12a, 98a-105a, 106a-109a). JURISDICTION The judgment of the district court (App., infra, 93a) was entered on July 14, 1986. The decision of the district court denying motions for reconsideration was entered on August 25, 1986 (App., infra, 106a-109a). A notice of appeal to this Court was filed on July 29, 1986, and an amended notice of appeal was filed on September 16, 1986 (App., infra, 94a-97a). The jurisdiction of this Court is invoked under 28 U.S.C. 1252. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Fifth Amendment of the Constitution provides in pertinent part: (N)or shall any person be * * * deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation. Section 402(a)(38) of the Social Security Act, 42 U.S.C. (Supp. II) 602(a)(38), provides in pertinent part: A State plan for aid and services to needy families with children must -- * * * provide that in making the determination under paragraph (7) with respect to a dependent child and applying paragraph (8), the State agency shall (except as otherwise provided in this part) include -- (A) any parent of such child, and (B) any brother or sister of such child, if such brother or sister meets the conditions described in clauses (1) and (2) of section 606(a) of this title, if such parent, brother, or sister is living in the same home as the dependent child, and any income of or available for such parent, brother, or sister shall be included in making such determination and applying such paragraph with respect to the family (notwithstanding section 405(j) of this title, in the case of benefits provided under subchapter II of this chapter) * * * . QUESTION PRESENTED Whether Section 402(a)(38) of the Social Security Act, which provides that all parents, brothers and sisters who live together shall constitute a single filing unit for purposes of the Aid To Families With Dependent Children (AFDC) program, is unconstitutional as violative of the Takings Clause, the Due Process Clause or the Equal Protection component of the Fifth Amendment. STATEMENT A. STATUTORY AND REGULATORY FRAMEWORK Congress established the Aid to Families with Dependent Children (AFDC) program in 1935. Social Security Act, ch. 531, Tit. IV, Sections 401-406, 49 Stat. 627-629, 42 U.S.C. (& Supp. II) 601 et seq. The program is designed to provide financial assistance to families with needy dependent children. See Heckler v. Turner, No. 83-1097 (Feb. 27, 1985). A "dependent child" is a needy child who has been deprived of parental care and support by the death, incapacity or "continued absence from the home" of a parent (42 U.S.C. 606(a)). In order to qualify for AFDC benefits, a family must meet certain standards of financial need, determined by its income and resources. 42 U.S.C. 602(a). The minimum monetary subsistence levels are established by the states (42 U.S.C. (& Supp. II) 602(a)(23)), and the states have "'broad discretion in determining both the standard of need and the level of benefits.'" Heckler v. Turner, slip op. 4 n.3 (quoting Shea v. Vialpando, 416 U.S. 251, 253 (1974)). A family is eligible for AFDC benefits if its countable income is less than the standard of need established by the state. The amount of benefits paid to the family is based upon the difference between the family's income and that standard. Prior to 1984, the statute contained no requirement that all family members residing together be included in the "filing unit" for AFDC purposes. Prior to 1984, therefore, a family applying for AFDC assistance could have excluded from the filing unit those members with income that, if counted in the eligibility determination, would have reduced the amount of the family's AFDC benefits or would have terminated its eligibility entirely. See I Senate Comm. on Finance, Deficit Reduction Act of 1984, S. Prt. 98-169, 98th Cong., 2d Sess. 980 (Comm. Print 1984). Moreover, in anticipation that one of its members was about to receive additional income, a family could have removed that member from the AFDC rolls, thus enabling the remaining family members to continue to qualify for benefits. In 1984, Congress amended the statute to set forth an explicit requirement that a parent and all siblings who reside with a dependent child be included in the filing unit when a family seeks or receives AFDC benefits. Deficit Reduction Act of 1984 (DEFRA), Pub. L. No. 98-369, Section 2640, 98 Stat. 494, 42 U.S.C. (Supp. II) 602(a)(38). The Senate Finance Committee explained the purpose of this amendment as follows (S. Prt. 98-169, supra, at 980): Present Law There is no requirement in present law that parents and all siblings be included in the AFDC filing unit. Families applying for assistance may exclude from the filing unit certain family members who have income which might reduce the family benefit. For example, a family might choose to exclude a child who is receiving social security or child support payments, if the payments would reduce the family's benefits by an amount greater than the amount payable on behalf of the child. * * * * Explanation of Provision The provision approved by the Committee would require States to include in the filing unit the parents and all dependent minor siblings (except SSI recipients and any stepbrothers and stepsisters) living with a child who applies for or receives AFDC. * * * This change will 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. The committee estimated that this change would save $455 million during 1984-1987 (id. at 981). See 130 Cong. Rec. S4099 (daily ed. Apr. 9, 1984) (remarks of Sen. Dole). This statutory change reflected Congress's recognition that a family that includes a member with separate income is less needy than a comparable family in which no member has any (or as much) such income. Thus, under the law as amended in 1984, all persons listed in the DEFRA amendment must be included in the filing unit when a family applies for AFDC, and the income received by all such persons must be considered in determining the family's eligibility for benefits, and, if the family is eligible, the level of benefits that it will receive. /1/ The effect of the 1984 amendment may be illustrated by a simplified example. Assume a family of four, consisting of three children and one parent, and assume that one of the children had a separate income of $200 per month, representing the family's only income. Prior to the 1984 amendment, the family could have excluded that child from the filing unit. The family would then have constituted a filing unit of three (one parent and two children) with no income, and it would have received the maximum AFDC monthly benefits for a family of that size, perhaps $250. Thus, when the excluded child's separate income was received, the aggregate monthly income of all members of the family would have been $450 ($250 in AFDC benefits plus $200 separate income). Under the statute as amended in 1984, by contrast, the family, if it chooses to apply for AFDC assistance, must include the income-receiving family member in the filing unit (42 U.S.C. (Supp. II) 602(a)(38)). It is now a filing unit of four (one parent and three children) with a monthly income of $200. If the state-prescribed maximum grant for a family of that size is $300 per month, the monthly AFDC benefits would be $100 ($300 minus $200) which, when added to the child's income, brings the family up to the state's maximum grant level ($300). In amending the statute in 1984, Congress established a slightly different scheme where the child's separate income is obtained in the form of child-support payments. The effect of this variation was to mitigate the impact of the new filing-unit provision. Since 1975, the AFDC program has required, as a condition of eligibility, that an applicant assign to the state any right to child-support payments. Social Services Amendments of 1974, Pub. L. No. 93-647, Section 101(c)(5)(C), 88 Stat. 2359, 42 U.S.C. 602(a)(26)(A); see Sorenson v. Secretary of the Treasury, No. 84-1686 (Apr. 22, 1986), slip op. 1-2. That assignment provision operated only when a family chose to include in the filing unit the child who received the support payments. /2/ Had Congress in 1984 simply added the requirement, without more, that a child with child-support income be included in the filing unit, the joint operation of DEFRA and the preexisting assignment provision would have produced a procedure in which the child-support payments were required to be assigned to the state, with the family receiving a somewhat larger AFDC payment to reflect the larger filing unit. Congress recognized, however, that the child support thus assigned might sometimes be greater than the marginal increase in AFDC benefits thus obtained, resulting in a possible economic disadvantage to the family. To alleviate that potential disadvantage, Congress added a companion provision to the statute in 1984. Pub. L. No. 98-369, Section 2640(b)(1), 98 Stat. 1145, 42 U.S.C. (& Supp. II) 657(b)(1). That section provides that the first $50 of any monthly child-support payment collected by the state pursuant to the assignment provision is to be paid by the state directly to the child's caretaker relative, and that this $50 is to be disregarded in determining the family's AFDC eligibility and benefits. The effect of this latter amendment may again be illustrated by an example. Assume the same family of four described in the example above, and assume that the child's $200 monthly income consists entirely of child support. Under the amended statute, that child would be included in the family filing unit for AFDC purposes; the $200 monthly child-support payment would be assigned to the state; the first $50 of child support collected by the state would be remitted to the family; that $50 would be disregarded in determining the family's income for AFDC purposes; and the family would be treated as a filing unit of four with no income, entitling it to $300 monthly benefits. Unlike the family described in our first example, therefore, the family that assigned its child support would have an aggregate monthly income of $350 ($300 in AFDC benefits and the additional $50 remittance from the state). B. PROCEEDINGS IN THIS CASE 1. This case had its origin in a challenge to the operation of the AFDC program in North Carolina long before DEFRA was enacted. In 1971, the United States District Court for the Western District of North Carolina invalidated a state rule that required child-support income to be considered a resource available to the family when computing the family's eligibility for AFDC benefits; the court held that the rule was inconsistent with the federal statutory scheme then in effect and enjoined the rule's enforcement. Gilliard v. Craig, 331 F. Supp. 587 (W.D. N.C. 1971), aff'd, 409 U.S. 807 (1972). Following the enactment of DEFRA and the promulgation of federal and state implementing regulations, appellees here, stating that they were members of the class certified by the district court in 1971, filed a motion for further relief asking the district court to enforce its 1971 injunction. The State of North Carolina filed a third-party complaint against the Secretary, contending that its current rules comply with the federal regulations implementing the DEFRA filing-unit rule and also contending that, if the State were found liable, the United States should be required to share in the payment of any AFDC benefits awarded. 2. On May 7, 1986, the district court issued its decision holding that the DEFRA filing-unit provision is unconstitutional (App., infra, 13a-92a). The court first addressed appellees' statutory-construction arguments, rejecting their contention that the Secretary's regulations conflict with the statute as amended in 1984. The court said that the legislative history "clearly shows that the intent of the DEFRA amendment is to measure need by assessing the aggregated resources of all family members (and that) the option of choosing which members of a family may be included in the assistance unit is no longer available to families whose members have different individual sources of income" (id. at 48a-49a). The court also rejected appellees' argument that child support was "legally restricted income" which Congress did not intend to be counted in determining a family's eligibility for assistance (id. at 50a). "That would be the constitutional approach," the court stated, "but it was not the congressional approach" (ibid. (emphasis in original)). Finally, the district court found no merit in appellees' contention that, because North Carolina law permits a mother to spend child support "only on the child for whom the support has been obtained," the law would be violated if child-support income were counted as "a family financial resource" (id. at 54a, 56a). The district court concluded that Congress's clear intent to include child support in AFDC calculations preempted state laws to the extent that they treat such income as the exclusive property of the child (id. at 52a, 59a-60a). The court then proceeded to hold the statute unconstitutional (App., infra, 61a-92a). First, the court concluded that the requirement that an AFDC applicant assign child-support income to the state constituted a taking of private property without just compensation. The "taking" that the court identified was the child's loss of "the right to enforce the fiduciary obligation that prohibited the mother from spending the money on anyone other than the designated child" (id. at 67a). With respect to appellees' substantive due process claims, the court concluded that it should apply a more rigorous degree of scrutiny than is ordinarily applicable to legislative decisions concerning the allocation of public welfare benefits. In the court's view, appellees' challenge to the DEFRA amendment "addresses a governmental decision to intercept the delivery of private property" (App., infra, 73a (emphasis in original)). "The impact of (Congress's) action on the child's fundamental associational rights and on a property right," the district court stated, "require(s) a more rigorous examination than (appellants) suggest" (ibid.). Asserting that DEFRA's filing-unit provision strains a mother's ability to keep her family intact and reduces the income of a family receiving AFDC benefits from "its already meager level," the district court held that the DEFRA amendment unconstitutionally burdens family relationships (App., infra, 78a). While acknowledging that the congressional objective of conserving limited fiscal resources is a legitimate one, the court held that "(t)he Constitution's consistent recognition and protection of family associational rights prevent the state and federal governments from using children's unchosen membership in a family that includes AFDC dependent half-sisters and brothers as the justification for the deprivation of property" (id. at 89a). On July 3, 1986, the district court issued a final order enjoining the Secretary from "requiring state defendants mandatorily to include the parent and all children living in the household in the assistance unit and from requiring child support income received from the legally obligated parent of one of the children to be included in determining financial eligibility for the rest of the family members" (App., infra, 6a). The court also issued, on the same day, an order in response to the Secretary's motion for clarification of its opinion. In that order the court stated that it "finds the statute unconstitutional because it imposes a financial penalty on children receiving adequate child support" and that "(s)uch a deprivation of property based on a child's unchosen family membership violates due process and equal protection principles, as explained at length in the memorandum of decision" (id. at 8a). On August 25, 1986, the district court denied motions for reconsideration in light of this Court's decision in Lyng v. Castillo, No. 85-250 (June 27, 1986). In Castillo, this Court reversed a district court decision which had held that a provision of the Food Stamp Act allocating benefits on the basis of single households composed of parents, children or siblings unduly burdened family associational rights and hence violated the equal protection component of the Due Process Clause. The district court below, in denying the motions for reconsideration, stated that Castillo did not control the instant litigation because the classification here unduly penalizes persons "who are not free to change their living arrangements to preserve or augment their income" (App., infra, 109a). THE QUESTION PRESENTED IS SUBSTANTIAL The district court has invalidated and enjoined enforcement of a key provision of the Social Security Act that effectuates Congress's express intent to remedy a flaw in the AFDC eligibility scheme. Faced with the task of allocating finite government funds among a large number of potential recipients, a task made more difficult by an "overwhelming deficit crisis," Congress decided in 1984 to 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" (S. Prt. 98-169, supra, at 980). If the decision below is allowed to stand, the result would be to thwart Congress's determination that the statutory scheme as amended in 1984 best allocates scarce resources to those most in need. /3/ 1. We start on common ground with the district court in one respect. The court correctly discerned Congress's intent to include in the AFDC family filing unit children receiving child-support payments regardless of their individual need for assistance (App., infra, 48a-49a). In ascertaining the need of a dependent child for aid, the statute as amended in 1984 requires the state to include in the AFDC eligibility determination "any brother or sister of such (dependent) child" as long as that brother or sister "is living in the same home as the dependent child" and meets the other conditions set forth in the statute. 42 U.S.C. (Supp. II) 602(a)(38). /4/ The statute also clearly provides that "any income of or available for such parent, brother, or sister * * * shall be included in making (the eligibility) determination." 42 U.S.C. (Supp. II) 602(a)(38) (emphasis added). 2. We part company rather vigorously, however, with the district court's conclusion that the mechanism that Congress has chosen for calculating AFDC eligibility and benefits is unconstitutional. It is of course well established that social welfare legislation need withstand only a minimal level of scrutiny in order to survive due process and equal protection challenges. See, e.g., Atkins v. Parker, No. 83-1660 (June 4, 1985); Schweiker v. Hogan, 457 U.S. 569 (1982); Schweiker v. Wilson, 450 U.S. 221 (1981); Califano v. Jobst, 434 U.S. 47 (1977); Weinberger v. Salfi, 422 U.S. 749 (1975). A classification created by federal welfare legislation will be upheld so long as there is a rational basis for the congressional choice and the classification is not "patently arbitrary." Califano v. Aznavorian, 439 U.S. 170 (1978); Flemming v. Nestor, 363 U.S. 603 (1960). The filing-unit provision adopted by Congress in 1984 is an appropriate means of carrying out the legislative conclusion that families whose members have access to additional sources of income have less need for government assistance than families without access to such sources of income. That conclusion flowed from Congress's legislative findings that family members who live in the same household pool their resources and share their expenses. As this Court noted in Lyng v. Castillo, supra, "close relatives sharing a home -- almost by definition -- tend to purchase and prepare meals together" (slip op. 7). Congress relied here on the same proposition that this Court found rational in Castillo: that family members, in meeting their subsistence needs, share expenses and, therefore, at least indirectly, share their respective incomes. /5/ Having reached the conclusion that all income received by family members residing in the same household should be considered in determining the family's eligibility for AFDC assistance, Congress implemented budget reduction plans that rationally cut benefits most to those who are, because of their additional sources of income, relatively speaking least needy. /6/ 3. The district court also erred in holding (App., infra, 61a-70a) that the treatment of child-support payments under the amended statute effected a "taking" of private property in violation of the Fifth Amendment. In reaching that conclusion, the district court focused, not on Congress's redefinition of the filing unit in 1984, but on an entirely separate provision enacted in 1975. That provision requires that any applicant for AFDC benefits who has any right to support, either "in his own behalf or in behalf of any other family member for whom (he) is applying for or receiving aid," must assign those rights to the state "as a condition of eligibility" (42 U.S.C. (& Supp. II) 602(a)(26)(A)). See Sorenson v. Secretary of the Treasury, slip op. 1-2. The district court did not suggest, and it could not credibly be maintained, that this assignment provision effected an unconstitutional "taking" of child-support payments upon its enactment in 1975. The AFDC program has always been a voluntary one, conferring sizable benefits on those who chose to participate, and it is clear that Congress may attach reasonable conditions to participation in such programs. Cf. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1007 (1984) ("(A)s long as "the applicant) is aware of the conditions under which the data are submitted, and the conditions are rationally related to a legitimate Government interest, a voluntary submission of data by an applicant in exchange for the economic advantages of a registration can hardly be called a taking"). But the assignment provision, which was constituional when first enacted, cannot be thought to have suddenly effected a "taking" of private property in 1984, when Congress amended the law to standardize the composition of the AFDC filing unit. After that amendment, as before it, the AFDC program remains a voluntary one, conferring sizable benefits on those who choose to participate. The only relevant change effected by the 1984 amendment is that those who choose to participate must now include in the filing unit all members of the family who live together and hence share their resources and expenses. This new filing-unit provision, like the preexisting assignment provision, is plainly a condition of AFDC eligibility that is "rationally related" to the legitimate legislative purpose of restricting the availability of limited public welfare funds to those who are most in need. In reaching its incorrect result, the district court misconstrued the nature of the government interest and paid scant attention to the benefits that the statutory scheme confers on AFDC families. The court narrowly viewed the government's interest as "budgetary savings" (App., infra, 86a; see id. at 89a). While that plainly legitimate objective is entitled to greater deference than the district court gave it (see Bowen v. Owens, No. 84-1905 (May 19, 1986), slip op. 7-8), Congress in fact sought to achieve a broader objective: the optimal allocation of scarce resources to those most in need of government aid. In seeking to promote that clearly proper purpose, Congress started from the unremarkable premise that families whose members have larger aggregate incomes are less needy than families whose members have smaller aggregate incomes. Congress then crafted a plan that reasonably accommodates the competing values in this complex area of social policy. Under the statute as amended in 1984, the custodial parent, acting as fiduciary for his or her minor children, retains the option to decide whether it is in the best interest of the children, individually and collectively, to assign to the state the child-support payments due one or more children and apply for AFDC benefits, or, instead, to continue to receive child-support payments and forgo AFDC. That decision is the same decision that the custodial parent, acting as fiduciary for his or her minor children, has had to make at all times since the assignment provision was enacted in 1975. If the custodial parent decides to apply for AFDC benefits, that decision confers significant advantages on all members of the family, including any children who may be entitled to support payments. That decision removes from the shoulders of the child and the custodial parent most of the consequences of child-support delinquency. /7/ After the child-support rights are assigned to the state, the family receives an AFDC grant that reflects the needs of the child regardless of the state's ability to collect from the noncustodial parent. Thus, the child's income (and, derivatively, the family's) is not subject to wide monthly fluctuations depending on whether support payments are made on time and in full. /8/ The legislative scheme also removes from the AFDC recipients most of the burden of pursuing non-custodial parents who fail to satisfy their support obligations. That task falls to the state (see 42 U.S.C. (Supp. II) 666), which has at its disposal the enhanced enforcement mechanisms enacted by Congress contemporaneously with DEFRA. Child Support Enforcement Amendments of 1984, Pub. L. No. 98-378, 98 Stat. 1305 et seq. An additional benefit flowing from the DEFRA amendments is that children newly included in the AFDC filing unit are automatically entitled to receive free medical care under the Medicaid program (see 42 U.S.C. (& Supp. II) 1396(a)(10)(A)(i)(I)). Finally, as we have noted (pages 6-8, supra), Congress attempted to mitigate any economic disadvantage that the new filing-unit rule might work on some families by providing that the first $50 of monthly child support collected by the state be paid directly to the child's caretaker relative, which $50 is to be disregarded in determining the family's AFDC eligibility. Pub. L. No. 98-369, Section 2640(b)(1), 42 U.S.C. (Supp. II) 657 (b)(1). The "administration of public welfare assistance * * * involves the most basic economic needs of impoverished human beings" (Dandridge v. Williams, 397 U.S. at 485). Any adjustment to the benefit scheme that results in a lowering of benefit levels undoubtedly causes hardship to certain needy persons. But such hardship, if it is the consequence of rational judgments by the legislature in pursuit of legitimate governmental objectives, does not rise to the level of a constitutional deprivation. Any requests for further adjustments to the benefit scheme are properly addressed to Congress and not the courts. See Schweiker v. Hogan, 457 U.S. 569, 590-592 (1982); Schweiker v. Wilson, 450 U.S. 221, 238 (1981). CONCLUSION Probable jurisdiction should be noted. Respectfully submitted, CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General ALBERT G. LAUBER, JR. Deputy Solicitor General JERROLD J. GANZFRIED Assistant to the Solicitor General WILLIAM KANTER CARLENE V. McINTYRE Attorneys SEPTEMBER 1986 /1/ To implement the DEFRA amendment, the Secretary of HHS promulgated the following regulation (45 C.F.R. 206.10(a)(1)(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. /2/ This typically occurred when the support payment was smaller than the increase in AFDC benefits that the family would realize by applying as a larger filling unit. It also occurred when the noncustodial payment was delinquent or irregular in making child-support payments and the family concluded that it could maximize its aggregate income by including the child in the filing unit. /3/ The district courts are divided on the question presented in this case. The government has prevailed in the following cases involving challenges to the 1984 AFDC amendments: Childress v. Hill, No. 85-Z-1459 (D. Colo. Jan. 21, 1986); Creaton v. Heckler, 625 F. Supp. 26 (C.D. Cal. 1985) (denial of preliminary injunction), No. CV-85-3306-R (May 16, 1986) (decision on the merits); Maryland Dep't of Human Resources v. United States Dep't of Health & Human Services, No. M-86-605 (D. Md. Apr. 22, 1986); Mobbs v. Bowen, No. C-86-245-AAM (E.D. Wash. July 21, 1986); Oliver v. Ledbetter, 624 F. Supp. 325 (N.D. Ga. 1985); Sherrod v. Hegstrom, 629 F. Supp. 150 (D. Or. 1985); Shonkwiler v. Heckler, 628 F. Supp. 1013 (S.D. Ind. 1985) (denial of preliminary injunction), No. IP 85-1612-c (Aug. 11, 1986) (decision on the merits); Van Berg v. Shinpoch, No. C85-2069C (W.D. Wash. Apr. 18, 1986); Van Horn v. Hegstrom, No. 85-1768RE (D. Or. Feb. 20, 1986). Only one court, aside from the district court below, has held the DEFRA filing-unit provision unconstitutional. Lesko v. Bowen, No. 85-C-1600 (W.D. Wis. July 16, 1986) (granting preliminary injunction). The Secretary and the state defendants in that case have noticed on appeal to this Court, and the state filed its jurisdictional statement on September 12, 1986 (No. 86-415). We anticipate that we will file a jurisdictional statement in Lesko shortly. Several district courts have invalidated the DEFRA-AFDC amendments on other grounds without addressing the constitutionality of the statute. See Gorrie v. Heckler, 624 F. Supp. 85 (D. Minn. 1985), appeal pending, No. 85-5394-MN (8th Cir.); Johnson v. Cohen, No. 84-6277 (E.D. Pa. Jan. 10, 1986), appeal pending, Nos. 86-1101, 86-1107, 86-1149 (3d Cir.); White Horse v. Heckler, 627 F. Supp. 848 (D.S.D. 1985), appeal pending, Nos. 85-5005, 85-5006SD (8th Cir.). Preliminary injunctions have been granted in favor of plaintiffs on statutory grounds in Frazier v. Pingree, 612 F. Supp. 345 (M.D. Fla. 1985); Lee v. Pingree, No. 85-644-Civ-T-13 (M.D. Fla. Feb. 13, 1986); Gibson v. Sallee, No. 3-85-1283 (M.D. Tenn. Mar. 6, 1986); Short v. Heckler, No. C85-2248 (W.D. Wash. Jan. 6, 1986). Preliminary injunctions have been denied in Ardister v. Mansour, 627 F. Supp. 641 (W.D. Mich. 1986); Rosado v. Bowen, No. H-85-171 (JAC) (D. Conn. Apr. 25, 1986). /4/ Amended Section 602(a)(38) also requires that such brother or sister meet "the conditions * * * in clauses (1) and (2) of (42 U.S.C. 606a." Those clauses have but two requirements. First, the child must be "deprived of parental support or care." Second, the child must be under the age specified in that provision. As the district court noted (App., infra, 49a), a co-resident sibling who receives child support is "deprived of parental support or care" because his or her noncustodial parent is "absen(t) from the home" within the meaning of Section 606(a). /5/ For similar reasons, the district court was incorrect in concluding that DEFRA's filing-unit rule conflicts with state law governing child support. The district court's preemption analysis (App., infra, 53a-61a) is therefore misplaced. State law does not preclude the custodial parent from using child-support payments for the child's shelter and food, items that are ordinarily regarded as shared expenses of families that reside together. Accordingly, this case involves no conflict between federal and state laws governing a child's interest in or right to support payments. Rather, the only question presented here concerns Congress's ability to require that AFDC filing units be composed of all members of the family with income that affects the family's need for assistance. The fact that child-support income may under state law be deemed the property of the child on whose behalf it is paid does not mean that Congress cannot, consistently with state law, require that such income be considered when the child's family applies for AFDC. Contrary to the district court's analysis (id. at 52a-53a), the DEFRA filing-unit provision does not reorder the manner in which families spend their money, and therefore it does not require that a custodial parent make "available" to the rest of the family child-support income that is exclusively the property of one child. /6/ There is no support for the district court's suggestion that the DEFRA filing-unit provision is unconstitutional on the theory that it infringes upon parental rights to "keep() their families intact" (App., infra, 79a), and discourages fathers from honoring their child-support obligations (id., at 79a-85a). This Court recently explained that only those governmental regulations which "'directly and substantially'" interfere with family-based decisions run afoul of the Due Process Clause. Castillo, slip op. 3 (quoting Zablocki v. Redhail, 434 U.S. 374, 387 & n.12 (1978)). The standard filing-unit provision at issue here, however, does not directly cause any constitutionally cognizable harm to the family unit. That provision, rather, like the similar family-based eligibility scheme upheld in Castillo, merely adjusts the eligibility determination to reflect the unexceptional notion that family members who live together tend to share their living expenses. There is no constitutional impediment to Congress's conclusion that eligibility for AFDC, which is a "family grant" (Dandridge v. Williams, 397 U.S. 471, 477 (1970) (emphasis in original)), should reflect this fact of family life. /7/ As of early 1984, 8.7 million women headed families with minor children whose fathers were not living in the household; of those women who had been awarded child support, 25% received no payments at all, and another 25% received less than the full payments to which they were entitled. Bureau of the Census, U.S. Dep't of Commerce, Child Support and Alimony: 1983, at 1 (July 1985). /8/ Only the $50 disregard (see pages 6-8, supra) is dependent upon the state's ability to collect support payments from the noncustodial parent. Even in months when the noncustodial parent makes no payment, therefore, the family's income will not fall below the state's maximum payment level for a family of that size and circumstance. And when support payments are actually made by the noncustodial parent, the child receives the $50 increment on top of the family's full AFDC grant. APPENDIX