JOHN H. PRATT, District Judge.
This action challenges the validity of 45 C.F.R. § 233.20(a)(12)(i), 38 Fed.Reg. 22010 (August 15, 1973), promulgated by the Department of Health, Education and Welfare (HEW). Plaintiff National Welfare Rights Organization (NWRO) is a voluntary national association of 125,000 individuals. Caspar Weinberger, Secretary of HEW, is sued in his official capacity. Jurisdiction is alleged under 28 U.S.C. §§ 1331, 1361 (1970) and 5 U.S.C. §§ 701-706 (1970). A motion for certification as a class action has been made. The relief sought involves a declaration that the questioned regulation is invalid, a recission of that regulation by HEW and notification to the states. Plaintiff in four separate counts contends (1) that the regulation violates statutory sections common to five separate titles of the Social Security Act of 1935 as amended; (2) contravenes Congress's express disapproval of the substance of the regulation; (3) denies equal protection as embodied in the Due Process Clause of the Fifth Amendment; and (4) is arbitrary, capricious and an abuse of discretion. NWRO has moved for partial summary judgment on its first two counts. HEW has opposed and moved for summary judgment on all counts. In reply, plaintiff argues material issues of fact are present in the latter two counts.
For the reasons which appear below, the Court is of the opinion that the plaintiff must succeed in its first count. Accordingly, a decision on the remaining counts is now moot.
Several titles of the Social Security Act are at issue due to the fact that there are virtually identical key sections common to each title which are alleged to have been violated.
Title I 42 U.S.C. § 301 et seq. (1970) Old Age Assistance (OAA)
Title IV 42 U.S.C. § 601 et seq. (1970) Aid to Families with
Dependent Children (AFDC)
Title X 42 U.S.C. § 1201 et seq. (1970) Aid to the Blind (AB)
Title XIV 42 U.S.C. § 1351 et seq. (1970) Aid to the Permanently and
Totally Disabled (APTD)
Old Title XVI 42 U.S.C. § 1381 et seq. (1970) Aid to the Aged, Blind &
New Title XVI 42 U.S.C. § 1381 et seq. Supplemental Security Income
(Supp. II 1972) for the Aged, Blind and
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