Garcia

*906 Opinion

In a class action against the Director of the State Department of Benefit Payments (Department) plaintiffs and appellants challenged the validity of a Department regulation in a complaint for injunctive and declaratory relief. The preliminary injunction was denied, and judgment was entered for the defendant. Plaintiffs then entered the instant appeal.

Facts

Plaintiffs Marguarita Garcia and Palmida Castanon, represent themselves and a class of persons who are recipients of the aid to families with dependent children (AFDC) program. The administrative regulation challenged by them, EAS 44-315.6, provides as follows:

Under the instant regulation, known as “Prior Month Budgeting,” an AFDC grant for the current month is calculated on the basis of the net nonexempt income that is received two months prior to the actual payment of the grant. 1 Since the budget period precedes the payment *907 period by two months, a grant in April is based on a recipient’s February income, a grant in May is based on March income, and so forth. All AFDC recipients are required to submit a monthly report of all income received during the budget period. In the intervening month between the…

In a class action against the Director of the State Department of Benefit Payments (Department) plaintiffs and appellants challenged the validity of a Department regulation in a complaint for injunctive and declaratory relief. The preliminary injunction was denied, and judgment was entered for the defendant. Plaintiffs then entered the instant appeal.

Plaintiffs Marguarita Garcia and Palmida Castanon, represent themselves and a class of persons who are recipients of the aid to families with dependent children (AFDC) program. The administrative regulation challenged by them, EAS 44-315.6, provides as follows:

.61 The budget period in counties without an approved alternate payment system:

".611 The budget period for AFDC-FG and AFDC-U cases shall be the second prior calendar month before the first installment of the corresponding payment period.

".... .... .... .... ...

".62 The budget period in counties with approved alternate payment systems:

".621 The budget period for AFDC-FG and AFDC-U cases shall be a 28 to 31-day period ending not more than 31 days nor less than 28 days before the first installment of the corresponding payment period. The budget…

I reluctantly concur in the result as applied to these particular plaintiffs. I feel, however, compelled to express certain reservations:

(1) As footnote 1 of the court’s opinion indicates, Prior Month Budgeting (PMB) does not go into effect until the third month after payments commence. Therefore, for the first two months of eligibility the recipient receives a full grant without deduction for additional income *915 during either month. The federal requirement is that payments begin “with reasonable promptness . . . .” Obviously, if a state cannot recoup overpayments necessarily made because of the impossibility of making immediate payments that reflect additional income not yet in the hands of the recipient, the pressures to give an elastic interpretation to the “reasonable promptness” requirement may prove irresistible. Thus, while taking care of the problems of these plaintiff’s, the net effect of our opinion may not be beneficial to welfare recipients in general.

(2) Without expressly disagreeing, I wish to disassociate myself from the court’s discussions of Mrs. Garcia’s problems under the former regulation referring to “ . .. income ... actually available for current use…