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MILLER v. CARLSON

June 6, 1991

ELIZABETH MILLER, JUDI COCHRAN, CATHLEEN WILLHITE, TANYA WARKE, ELIZABETH VAN DYKEN, JOANNE LEWIS, DEANNA THIEBERT, ALTHEA FOREMAN, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
LONNIE CARLSON, in his official capacity as acting Director, California Department of Social Services; CALIFORNIA DEPARTMENT OF SOCIAL SERVICES; THOMAS HAYES, in his official capacity as Director, California Department of Finance; LOUIS W. SULLIVAN, M.D., in his official capacity as Director, United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendants



The opinion of the court was delivered by: WEIGEL

 STANLEY A. WEIGEL, UNITED STATES DISTRICT JUDGE

 I. BACKGROUND

 Plaintiffs are California recipients of Aid to Families with Dependent Children ("AFDC") who need child care in order to participate in educational or training activities likely to provide them opportunities to secure employment and remove themselves from the welfare rolls. Defendants include the California Department of Social Services ("DSS"), the United States Department of Health and Human Services ("HHS"), and the Directors of DSS, HHS, and the California Department of Finance.

 At issue is a provision of the Family Support Act of 1988 which requires all states to guarantee child care to each recipient of AFDC who is participating satisfactorily in an education or training activity approved by the state. 42 U.S.C. § 602(g)(1)(A)(i)(II).

 On March 3, 1991, plaintiffs filed a complaint for declaratory and injunctive relief, contending that defendants have violated their rights under the Family Support Act of 1988, 42 U.S.C. § 602(g)(1)(A)(i)(II)(Supp. 1990), by limiting the guarantee of child care exclusively to AFDC recipients enrolled in the state sponsored employment and training program known as Greater Avenues to Independence ("GAIN"). Defendants maintain that such a policy is in compliance with the Act.

 On May 2, 1991, upon stipulation of the named parties and pursuant to this Court's Order, plaintiffs were certified as a class defined as "all recipients of Aid to Families with Dependent Children ("AFDC") in California who are participating in or will participate in training or educational activities outside of the state-sponsored employment and training program known as Greater Avenues to Independence ("GAIN")." *fn1"

 Plaintiffs seek a preliminary injunction to enjoin defendants from failing to provide continued child care assistance to AFDC recipients who have been or will be terminated from GAIN, but who are continuing to participate satisfactorily in their state-approved educational or training activities.

 A. The Family Support Act of 1988

 Congress enacted the Family Support Act of 1988, Pub. L. No. 100-485, 102 Stat. 2343 (1988) (codified in scattered sections of 42 U.S.C.), to "profoundly and fundamentally change the welfare system . . . [by creating] opportunities for recipients of Aid to Families with Dependent Children to further their education and job training and ultimately to remove themselves from the welfare rolls and gain self sufficiency through meaningful employment." 133 Cong. Rec. H1143 (daily ed. Dec. 15, 1987) (statement of Rep. Frost).

 The Act requires each state, as a condition of participation in the AFDC program, to create a "Job Opportunities and Basic Skills" ("JOBS") program in order to provide training, education, and work opportunities for AFDC recipients. 42 U.S.C. § 681 et seq. (Supp. 1990). JOBS participants are entitled to support services necessary for participation, including costs of transportation and other work-related expenses. 42 U.S.C. § 602(g)(2) (Supp. 1990). GAIN is California's JOBS program. Cal. Welf. & Inst. Code § 11320 et seq. (West Supp. 1991).

 
for each individual [AFDC recipient] participating in an education and training activity (including participation in a program that meets the requirements of [the JOBS provision]) if the State agency approves the activity and determines that the individual is satisfactorily participating in the activity.

 42 U.S.C. § 602(g)(1)(A)(i)(II) (Supp. 1990) (emphasis added). Plaintiffs argue (1) that on its face, this child care guarantee includes, but is not limited to, JOBS participants; (2) that the structure of the Family Support Act confirms that the child care guarantee is not limited to JOBS participants; and (3) that the legislative history of this provision demonstrates that it extends beyond JOBS.

 Yet HHS has promulgated a regulation which requires states to offer child care assistance to AFDC recipients only if they "participate in an approved education or training activity under JOBS." *fn2" 45 C.F.R. § 255.2(a)(2) (emphasis added). In reliance on this regulation, California has denied child care to AFDC recipients who are participating satisfactorily in education or training programs but who, due to capped GAIN funds, have not been admitted into or have been terminated from GAIN. Both HHS and DSS defend their actions as consistent with the Family Support Act.

 B. Plaintiffs' Predicament

 Plaintiffs are recipients of AFDC who are currently participating or wish to participate in educational or training programs likely to lead to permanent employment. The named plaintiffs have chosen programs such as nursing, court reporting, and paralegal training. Their declarations indicate that lack of affordable child care is the primary obstacle to successful completion of their education and training.

 Members of the class seeking preliminary injunctive relief were participating in training or education activities approved through the GAIN program until they were recently terminated from the program due to budget reductions. As a result, these plaintiffs lost their child care assistance. See Miller Decl.; Warke Decl.; Cochran Decl.; Van Dyken Decl.; Willhite Decl.

 In support of this motion, class members describe their inability to participate in training and educational activities without child care assistance. *fn3" Their declarations indicate that they cannot afford to pay for child care without sacrificing basic necessities. The AFDC grant, which is their only source of income, is often insufficient even for essentials. *fn4" This money must be stretched to pay for housing, food, utilities, clothing, transportation, personal hygiene and miscellaneous necessities for the entire family. There is no money left to pay for child care. See Miller Decl., paras. 7, 11-14; Van Dyken Decl., para. 8; Weary Decl. paras. 7, 9; Warke Decl. para. 9; Willhite Decl. paras. 9, 11; Cochran Decl. paras. 8, 9; Freis Decl. paras. 4, 5, 7; Patton Decl. paras. 4, 5; Hruby Decl. paras. 4, 5; Phipps Decl. paras. 4, 5, 7.

 Plaintiffs now move for a preliminary injunction to enjoin defendants from failing to provide continued child care assistance to AFDC recipients who have been or will be terminated from GAIN, but who continue to participate satisfactorily in their approved educational or training activities. Their motion is well-taken.

 II. STANDARD FOR ISSUING A PRELIMINARY INJUNCTION

 To obtain a preliminary injunction in this circuit, the moving party must show either: (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips in its favor. United States v. Odessa Union Warehouse Co-Op, 833 F.2d 172, 174 (9th Cir. 1987); Benda v. Grand Lodge of Int'l Ass'n of Machinists & Aerospace Workers, 584 F.2d 308, 314-15 (9th Cir. 1978), cert. dismissed, 441 U.S. 937, 60 L. Ed. 2d 667, 99 S. Ct. 2065 (1979). These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. Odessa, 833 F.2d at 174; Oakland Tribune, Inc. v. Chronicle Pub. Co., 762 F.2d 1374, 1376 (9th Cir. 1985).

 Plaintiffs are entitled to a preliminary injunction under either formulation. As discussed below, plaintiffs demonstrate both a likelihood of success on the merits ...


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