                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-9-1998

Maldonado v. Houstoun
Precedential or Non-Precedential:

Docket 97-1893




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Recommended Citation
"Maldonado v. Houstoun" (1998). 1998 Decisions. Paper 219.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/219


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Filed September 9, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-1893

EDWIN MALDONADO; MARIA DELORES MALDONADO,
individually and as next friends of Ana Maldonado, Pablo
Maldonado, Edwin Maldonado, Rey Maldonado, Yesenia
Maldonado, and Jose Maldonado, and on behalf of all
others similarly situated; MARIA ORTIZ; MICHAEL ORTIZ,
individually and as next friends of Julie Ortiz, Michael
Ortiz, and Angelica Ortiz, and on behalf of all other
similarly situated; KENSINGTON WELFARE RIGHTS
UNION; PHILADELPHIA WELFARE RIGHTS
ORGANIZATION, on behalf of themselves and their
members; TRAVELER'S AID SOCIETY OF PHILADELPHIA,
individually and on behalf of its clients

v.

FEATHER O. HOUSTOUN, Secretary of the
PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE;
DON JOSE STOVALL, Executive Director of the
PHILADELPHIA BOARD OF ASSISTANCE, both in their
official capacities,
       Appellants

Appeal from the United States District Court
For the Eastern District of Pennsylvania
D.C. No.: 97-cv-04155

Argued: July 21, 1998

Before: STAPLETON, ROSENN, Circuit Judges,
and
RESTANI, Judge, United States Court of
International Trade*
_________________________________________________________________

*The Honorable Jane A. Restani, Judge, United States Court of
International Trade, sitting by designation.
(Filed September 9, 1998)

       John G. Knorr, III (Argued)
       Office of Attorney General of
        Pennsylvania
       Department of Justice
       Strawberry Square
       15th Floor
       Harrisburg, PA 17120
       Counsel for Appellant

       Susan Frietsche (Argued)
       Women's Law Project
       125 South 9th Street
       Suite 401
       Philadelphia, PA 19107
       Counsel for Appellee

OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal presents a significant constitutional question
implicating an aspect of Pennsylvania's recent amendment
to its public assistance benefits legislation. Pennsylvania
made the change during a recent wave of federal and state
welfare reform legislation which swept the nation calling for
a reduction in overall welfare expenditures. Specifically, we
must decide the constitutionality of S 9(5)(ii) of
Pennsylvania's Act 35 of 1996. See Pa. Stat. Ann., tit. 62,
S 432(5)(ii). It mandates that an eligible family arriving in
Pennsylvania from another state shall, during itsfirst
twelve months of bona fide residence, receive as cash
benefits the lesser of: (1) the benefit level available to
similarly situated Pennsylvania residents of twelve months
or more, or (2) the benefit level the family would have been
eligible to receive in their prior state had they not moved to
Pennsylvania.

In 1997, several months after the passage of this
legislation, Maria and Edwin Maldonado and their six
minor children migrated to Pennsylvania from Puerto Rico.
They became eligible for public assistance benefits but were

                                  2
informed that the cash benefits allowance available to them
would be substantially lower than the benefits provided to
similarly situated long-term Pennsylvania residents.1

Shortly thereafter, the Maldonados and several
organizations that represent their interests (collectively, the
"Maldonados"), instituted a class action against Feather O.
Houstoun, Pennsylvania's Secretary of Public Welfare, and
Don Jose Stovall, Executive Director of the Philadelphia
Board of Assistance, both in their official capacities
(collectively, the "Commonwealth"), in the United States
District Court for the Eastern District of Pennsylvania. The
Maldonados sued pursuant to 42 U.S.C. S 1983, seeking
declaratory and injunctive relief, claiming that
Pennsylvania's two-tier welfare scheme violates their
constitutional rights to travel, to equal protection, and to
non-discriminatory treatment under the Privileges and
Immunities Clause. The district court held that the scheme
did not appear to be supported by a rational basis, and
thus likely violated the Fourteenth Amendment's Equal
Protection Clause. Therefore, the court preliminarily
enjoined enforcement of the two-tier scheme and certified
the class, with the Maldonados as class representatives.
The Commonwealth timely appealed the injunction. We
affirm, although our analysis differs.

I.

The relevant facts of this case are for the most part
undisputed. In May 1996, after several attempts to pass
similar measures failed throughout the early 1990s,
Pennsylvania, as part of the state's broad-scale welfare
reform, enacted Section 9(5)(ii), governing public assistance
benefits to eligible families that have resided in
Pennsylvania for less than one year. Section 9(5)(ii) provides
that during the first twelve months of residence in
Pennsylvania, an eligible family's cash assistance benefits
are limited to the lesser of (1) the benefit level that family
_________________________________________________________________

1. Pennsylvanians with a twelve month residence were eligible for cash
benefits of $836 but the Maldonado family, because of their less than a
twelve month residence, was eligible for cash benfits of only $304 per
month, the amount they would have been allowed in Puerto Rico.

                               3
would have received in its prior state of residence, or (2) the
benefit level available to otherwise similarly situated long-
term Pennsylvania residents.2 Because Pennsylvania grants
larger cash benefits than 40 other states, under this two-
tier scheme, a typical eligible family moving to Pennsylvania
would lose anywhere from over 60%, to as little as 2%, of
their cash benefits for the first twelve months that they
reside in the state.

Pennsylvania's legislation received considerable
reassurance when several months later, in August 1996,
Congress passed landmark welfare reform legislation known
as the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 ("PRWORA"), 42 U.S.C. SS 601, et
seq. The PRWORA dramatically changed the climate for
welfare programs in this country and encouraged states to
adopt restrictive cash benefit programs of the type
contained in Pennsylvania's Act 35 for those relocating from
another state. Among other things, the PRWORA changed
the basic funding format for state Temporary Assistance to
Needy Families ("TANF ")3 plans to awards of block grants,
expressly terminating the prior program's entitlement
nature. Especially relevant to this appeal is Section 604(c)
of the PRWORA, which explicitly authorized two-tier cash
benefits provisions like that enacted by Pennsylvania.
Section 604(c) authorized states to treat new residents
differently than longer-term residents.

Prior to May 1997, Plaintiff Edwin Maldonado worked as
a mechanic in Puerto Rico and supported his family with
his salary plus government-provided nutritional and
medical assistance. In May 1997, Maldonado's job ended.
_________________________________________________________________

2. Section 9(5)(ii), in its entirety, reads as follows:

       Cash assistance for applicants and recipients of aid to families
with
       dependent children who have resided in this Commonwealth for less
       than twelve months shall not exceed the lesser of the maximum
       assistance payment that would have been received from the
       applicant's or recipient's state of prior residence or the maximum
       assistance payment available to the applicant or recipient in this
       Commonwealth.

3. TANF replaced the former federal welfare program popularly known as
Aid to Families with Dependent Children ("AFDC").

                               4
He and his wife both had health problems, and therefore in
May 1997, they and their six children moved from Puerto
Rico to Philadelphia, Pennsylvania, where Mr. Maldonado
was born and spent part of his childhood, to seek better
health care.

Shortly after establishing residence in Pennsylvania, the
Maldonados applied for TANF benefits. The Pennsylvania
Department of Public Welfare ("DPW") approved their
application and also certified that both Mr. and Mrs.
Maldonado temporarily were unable to work. Under
Pennsylvania's revised welfare scheme, the Maldonados
qualified for monthly cash benefits of $304, the amount
they would have received in their prior place of residence,
Puerto Rico, $720 in food stamps and medical benefits paid
by the state of $1,483.60, plus a one-time grant of $213 to
defray job-search expenses.4 Had the Maldonados been
residents of Pennsylvania for at least twelve months, they
would have been eligible for cash benefits of $836 per
month instead of the $304 in benefits that they actually
received, a reduction of almost 64%.

As a result of the DPW's benefits decision, the
Maldonados sued the Commonwealth on June 19, 1997,
seeking a temporary restraining order (TRO) and
declaratory and injunctive relief. They claimed that
Pennsylvania's two-tier durational residency structure
violated their fundamental right to travel, their rights under
the Equal Protection Clause of the Fourteenth Amendment,
and their rights under the Privileges and Immunities Clause
of Article IV and the Fourteenth Amendment.

After denying the plaintiffs' motion for a TRO, the court
held a two-day hearing on the application for a preliminary
injunction. On October 6, 1997, after considering the
memoranda, transcripts, exhibits, and other evidence
contained in the sizeable and well-developed record, the
district court certified the class and preliminarily enjoined
enforcement of Pennsylvania's two-tier durational residency
requirement. The court, applying rational basis Equal
Protection analysis, held the law irrational. It found that
_________________________________________________________________

4. The Maldonados returned the $213 grant as both were certified
temporarily unable to work.

                                5
the class members were likely to succeed on the merits of
their constitutional claim that the class would suffer
irreparable harm absent the injunction, rejected the
Commonwealth's fiscal harm arguments, and found that
the public interest would be best served by granting the
injunction.5

The Commonwealth timely appealed. The district court
placed the action in civil suspense pending resolution of
this appeal.6

II.

On appeal, when considering the district court's grant of
a preliminary injunction, we review the court's legal
conclusions de novo, its findings of fact for clear error, and
its ultimate decision to grant or deny the preliminary
injunction for an abuse of discretion. See, e.g., Anderson v.
Davila, 125 F.3d 148, 159 (3d Cir. 1997); New Jersey Hosp.
Ass'n v. Waldman, 73 F.3d 509, 512 (3d Cir. 1995).
Because this appeal presents solely legal questions
pertaining to the constitutionality of Section 9(5)(ii) of
Pennsylvania's welfare act, our review is plenary.
Ordinarily, limited review is appropriate at the preliminary
injunction stage of a constitutional challenge to a state
statute, but since the issue is legal and the facts are well
established, we "need not abstain from addressing the
constitutional issue." Thornburgh v. American College of
Obst. and Gyn., 476 U.S. 747, 756 (1986).

A.

The Commonwealth succinctly frames the appellate issue
in these words: "Whether Pennsylvania violates the
_________________________________________________________________

5. On October 30, 1997, the court granted in part and denied in part the
Maldonados' motion to amend their complaint to include two additional
families as plaintiffs and class representatives, allowing one family--the
Ortizes--to join and denying the other.

6. The district court had jurisdiction over this civil rights action
pursuant to 28 U.S.C. SS 1331 and 1343. This Court has jurisdiction
over the district court's grant of a preliminary injunction pursuant to 28
U.S.C. S 1292(a)(1).

                               6
Constitution by providing that, for one year after their
arrival in Pennsylvania, applicants for certain welfare
benefits may receive only the amount they would have
received in their state of prior residence." Thus, we are
called upon only to determine the constitutionality of the
state statute; the federal statute, PRWORA, is not before us.
From a procedural perspective, the district court decided
the case on the Maldonados' motion for a preliminary
injunction. A district court should grant a preliminary
injunction only if (1) the plaintiff is likely to succeed on the
merits; (2) denial will result in irreparable harm to the
plaintiff; (3) granting the injunction will not result in
irreparable harm to the defendant; and (4) granting the
injunction is in the public interest. See Merchant & Evans,
Inc. v. Roosevelt Bldg. Prods. Co., Inc., 963 F.2d 628, 632-
33 (3d Cir. 1992). After weighing these factors, and
although the district court found that all four weighed in
the Maldonados' favor, it relied almost exclusively on the
first, the likelihood of success on the merits. Thus, if the
court incorrectly determined that the Maldonados were
likely to succeed on the legal merits of their claim, it erred
in granting the injunction. Because the Commonwealth
limits its appeal to the merits issue, we need only address
the propriety of the district court's legal conclusions.

B.

Under the Equal Protection clause, no state shall "deny
to any person within its jurisdiction the equal protection of
the laws." U.S. Const. amend. XIV, S1. Pennsylvania's two-
tier act warrants equal protection analysis because it
classifies bona fide residents of the state into two groups
when determining welfare benefits. In determining the
extent of cash welfare benefits, Pennsylvania created two
classes of indigent residents indistinguishable from each
other except that one is composed of residents who have
resided in the state a year or more, and the other of
residents who have resided in the state less than a year.

Even though a state has created a classification, not all
classifications are per se unconstitutional or automatically
subject to heightened judicial scrutiny. If Pennsylvania's
durational residency classification " `neither burdens a

                               7
fundamental right nor targets a suspect class, we will
uphold [it] so long as it bears a rational relation to some
legitimate end.' " See Vacco v. Quill, 117 S. Ct. 2293, 2297
(1997) (quoting Romer v. Evans, 517 U.S. 620, 631 (1996));
see also San Antonio Indep. School Dist. v. Rodriguez, 411
U.S. 1, 17 (1973). However, if the two-tier scheme is drawn
on suspect lines or does sufficiently burden a fundamental
right, it is subject to strict scrutiny and will pass
constitutional muster only if it is narrowly tailored to serve
a compelling state interest. See, e.g., Dunn v. Blumstein,
405 U.S. 330, 335 (1972); Shapiro v. Thompson, 394 U.S.
618, 634 (1969).

The Commonwealth argues that the district court
correctly held that Pennsylvania's two-tier durational
residence requirement does not penalize the plaintiffs'
fundamental right to travel or their right to equal
protection, and thus is not subject to strict scrutiny.
Instead, it argues that the court erred in holding that the
scheme was unconstitutional under rational basis review
when it found that it was not related to a legitimate
governmental interest. The Commonwealth contends that
the statute is rationally related to furthering the
Commonwealth's legitimate interest in fostering the self-
sufficiency and work ethic of its citizens, including its
newest citizens. By leaving recent interstate migrants with
the same benefit level as they were in their former place of
residence, the statute encourages them to seek work, rather
than increased benefits. The Maldonados, not surprisingly,
argue that although the court was correct in holding that
the statute did not pass rational basis review, that the two-
tier scheme penalizes the plaintiffs' fundamental right to
travel, and thus should be subject to strict scrutiny.
Neither party claims that the scheme classifies on suspect
lines.

C.

The constitutional right to travel is not contained in the
text of the Constitution, and a majority of the Supreme
Court of the United States has never agreed upon its
textual source. Analytically, the Court has recognized that
the historical foundation upon which this Republic was

                               8
structured was that we are all citizens of the United States,
one people, and, as such, we "must have the right to pass
and repass through every part of [the country] without
interruption, as freely as in our own States." See The
Passenger Cases, 48 U.S. (7 How.) 283 (1849). This right to
pass freely from one state to another was one of the
attractive features that persuaded the colonists to unite
into a nation. The Supreme Court repeatedly and
consistently has recognized a fundamental right to
interstate travel, see e.g., United States v. Guest, 383 U.S.
745 (1966); Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1867);
The Passenger Cases, 48 U.S. 283, and that inextricably
implicated therein is the right to migrate to and settle in
another state. See, e.g., Jones v. Helms, 452 U.S. 412, 417-
19 (1981); Memorial Hosp. v. Maricopa County, 415 U.S.
250 (1974); Dunn v. Blumstein, 405 U.S. 330, 338; Shapiro,
394 U.S. 618.

Regrettably, however, the law with respect to the
constitutional implications of the right to travel is unsettled
and in need of clarification. The Court has at times
subjected durational residence laws that impinge on the
right to travel to strict scrutiny, see Maricopa County, 415
U.S. 250; Dunn v. Blumstein, 405 U.S. 330; Shapiro, 394
U.S. 618, and at other times to what appears to be some
form of a heightened rational basis test.7 Furthermore,
although never formally recognized by the Court, we have
previously noted that Shapiro and its progeny arguably
were analyzed, at least in part, as if the classifications at
issue were somewhat suspect, in that they "penalized a
_________________________________________________________________

7. See Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986);
Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985); Zobel v.
Williams, 457 U.S. 55 (1982); see also Coburn v. Agustin, 627 F. Supp.
983, 988-94 (D. Kan. 1985) (discussing the Supreme Court's use of
"heightened rational basis scrutiny"); Alvarez v. Chavez, 886 P.2d 461,
466-67 (N.M. Ct. App. 1994) (same); Laurence H. Tribe, American
Constitutional Law, S 16-3 (2d ed. 1988) (discussing the "new, more
penetrating character" of the rational basis test, which he lables
"covertly
heightened scrutiny"); Gayle Lynn Pettinga, Note, Rational Basis with
Bite: Intermediate Scrutiny by Any Other Name, 62 Ind. L.J. 779, 787-92
(1987) (discussing "rational basis with bite in the right-to-travel
context").

                               9
group of people on the basis of their having exercised a
constitutionally protected right to travel." See Lutz v. City of
York, Pennsylvania, 899 F.2d 255, 265 (3d Cir. 1990); see
also Thomas R. McCoy, Recent Equal Protection Decisions--
Fundamental Right to Travel or "Newcomers" as a Suspect
Class?, 28 Vand. L. Rev. 987 (1975); Todd Zubler, The Right
to Migrate and Welfare Reform: Time for Shapiro v.
Thompson to Take a Hike, 31 Val. U. L. Rev. 893, 904-05
(1997).

In the seminal right to travel case of Shapiro, 394 U.S.
618, the Court subjected to strict scrutiny several state
laws that created one-year durational residence
requirements as a prerequisite to eligibility for any welfare
benefits. In construing a strikingly similar Pennsylvania
statute, the Court in Shapiro expressly held that "any
classification which serves to penalize the exercise of th[e]
right [to travel], unless shown to be necessary to promote a
compelling governmental interest, is unconstitutional." Id.
at 634. The Shapiro Court reasoned that the one-year
residence requirement imposed on recent migrants as a
condition of welfare eligibility, which resulted in a complete
denial of benefits for those persons residing in the state for
less than one year, was unconstitutional, because it
discriminated based solely on length of residency in the
state and thus unconstitutionally burdened the plaintiffs'
fundamental right to interstate travel and migration.

Five years later, in Maricopa County, the Court, applying
Shapiro, similarly subjected to strict scrutiny an Arizona
law that required one-year residency in a county as a
prerequisite to receiving free nonemergency hospital or
medical care. 415 U.S. 250. The Maricopa County Court
acknowledged that "any durational residence requirement
impinges to some extent on the right to travel" and thus not
all durational residency requirements are per se
unconstitutional. Maricopa County, 415 U.S. at 256. The
Court further stressed, however, that "the right of interstate
travel must be seen as insuring new residents the same
right to vital government benefits and privileges in the
States to which they migrate as are enjoyed by other
residents." Id. at 261. Thus, because it found that "medical
care is as much `a basic necessity of life' to an indigent as

                               10
[the] welfare assistance" at issue in Shapiro, and that the
classification penalized those persons who had"exercised
their constitutional right of interstate migration,[the
statute] must be justified by a compelling state interest." Id.
at 258-59 (citation omitted). The Court then struck down
the law, finding that the Arizona statute created"an
`invidious classification' that impinges on the right of
interstate travel by denying newcomers `basic necessities of
life,' " and was not supported by compelling justifications or
narrowly drawn. 415 U.S. at 269.

Since Shapiro and Maricopa County, a majority of the
Court has never subjected a durational residency
requirement to strict scrutiny. Instead, the Court
sometimes employs some form of rational basis review, and,
occasionally, analyzes such laws without even implicating
the fundamental right to travel. See, e.g., Attorney General
of New York v. Soto-Lopez, 476 U.S. 898 (1986) (four of the
justices applied strict scrutiny in an opinion which did not
command a majority); Hooper v. Bernalillo County Assessor,
472 U.S. 612 (1985); Zobel v. Williams, 457 U.S. 55 (1982).
This tendency, however, does not establish that rational
basis is now the appropriate test when evaluating
durational residency requirements as applied to welfare
benefits. The Court in those cases merely employed its
version of rational basis analysis because the challenged
laws could not even survive rational basis review. Thus, the
Court found it unnecessary to subject the laws to
heightened scrutiny. See, e.g., Soto-Lopez, 476 U.S. at 904
(explaining that because the "contested classifications [in
Zobel and Hooper] did not survive even rational basis, [the
Court] had no occasion to inquire whether enhanced
scrutiny was appropriate"). The holdings of Shapiro and
Maricopa County subjecting durational residency
requirements that impinge on the right to travel to strict
scrutiny, however, have never been overturned and thus
are binding precedent to which we adhere in deciding this
factually and legally similar case.

In deciding whether a durational residency requirement
sufficiently impinges upon the right to travel or migrate to
trigger strict scrutiny, the Court looks to see whether the
challenged law's "primary objective" is to impede interstate

                               11
travel; whether it "penalize[s] the exercise of that right;" or
whether it "actually deters such travel." Soto-Lopez, 476
U.S. at 903 (plurality opinion) (internal quotations and
citations omitted); see also Shapiro, 394 U.S. at 628-34.
Here, relying on the legislature's express intent "to promote
the self-sufficiency of all the people of the Commonwealth,"
Pa. Stat. Ann., tit. 62, S 401(a), the district court, in a very
thoroughly drafted opinion, agreed with the Commonwealth
that the statute's primary objective was not to deter
interstate travel and migration. The court also found that
the plaintiffs offered no conclusive evidence that the
durational residency requirement actually deters the right.
Even accepting the district court's conclusions of law that
travel deterrence was not the statute's primary objective
and the court's finding that the plaintiffs' failure to
establish that the duration requirement actually deterred,
we are still left with the formidable task of determining
whether having exercised the Constitutional right to travel,
the plaintiffs were penalized because of the duration of
their residence.

The district court ultimately employed rational basis
review because it found that the Maldonados could not
"demonstrate that Section 9(5)(ii)'s durational residence
requirement results in a `penalty' on the right to interstate
migration." The court distinguished this case from Shapiro
on the ground that scheme at issue in Shapiro resulted in
a total deprivation of welfare benefits needed to obtain
"life's basic necessities," whereas here the Pennsylvania
statute amounted only to a reduction in cash benefits. The
law did not deny the Maldonados other welfare benefits.
The court compared the Maldonados' position before and
after exercising the right, and found it significant that the
Maldonados continued to be eligible for TANF benefits at
the same level they would have received in Puerto Rico
(plus food stamps, medical benefits, and other assistance).
Accordingly, the court concluded that

       the lower benefits do not make new residents any
       worse off because [they] receive exactly what they were
       receiving or would have received in their state of prior
       residence. Thus, the `penalty' that plaintiffs allege is
       imposed on them for exercising their right to migrate

                               12
       interstate is not a `penalty' in the traditional sense of
       the word--a lost benefit that the person would have
       received had he not exercised some constitutional
       right. Indeed, the plaintiffs here have lost no benefit
       that they would have received had they not exercised
       their right to migrate. . . . Thus, . . . [this court] finds
       that Section 9(5)(ii)'s multi-tier durational residency
       does not act as a penalty on plaintiffs' right to
       interstate migration.

Maldonado v. Houstoun, 177 F.R.D. 311, 331-32 (E.D. Pa.
1997).

Although the Supreme Court has never made clear the
"amount of impact required to give rise to the compelling-
state-interest test," Maricopa County, 415 U.S. at 256-57,
we are persuaded that the district court's "penalty" analysis
in this case misconstrued the import of the relevant case
law and used an improper comparison. Thus it erroneously
concluded that Pennsylvania's two-tier welfare scheme does
not amount to a penalty. First, similar to the Pennsylvania
scheme under review here, two of the three state laws that
the Court struck down in Shapiro offered "partial assistance
. . . to some new residents and full assistance . . . to other
new residents." See Shapiro, 394 U.S. at 695; see also
Zobel, 457 U.S. at 60-66 (holding unconstitutional state
distribution of benefits to citizens on a sliding scale based
on how long they have lived in the state); Erwin
Chemerinsky, Constitutional Law: Principles and Policies,
S10.7, at 703-04 (1997) ("The Supreme Court . . . has ruled
that laws that do not totally deny benefits, but provide less
to new arrivals are unconstitutional."). Thus, that
Pennsylvania's scheme does not amount to a complete
denial of cash benefits and that it provides recent
immigrants with some amount of welfare benefits other
than cash assistance is not dispositive.

Second, and more importantly, as demonstrated by
Shapiro, Maricopa County, and every equal protection case,
the appropriate comparison is between those persons
subject to the classification and those persons who are
similarly situated but for the classification. Here, whether
Pennsylvania's two-tier scheme amounts to a penalty must
be determined by comparing new residents of Pennsylvania

                               13
and other similarly situated longer-term Pennsylvania
residents, and not by comparing new residents of
Pennsylvania and those of their former state. Once the
Maldonados established bona fide residency in
Pennsylvania, a comparison of residents of Puerto Rico with
long-term Pennsylvania residents for equal protection
purposes is neither sound nor logical; it is not a
comparison between analogues. Residents of Puerto Rico
have no claim to Pennsylvania welfare benefits or to equal
protection under Pennsylvania's welfare laws until they
move from Puerto Rico and establish a bona fide residence
in Pennsylvania. Only once those persons reside in
Pennsylvania is the classification applicable to them.

Although the level of scrutiny to which durational
residence requirements are subject may not be applied
similarly in all contexts, that the appropriate comparison is
between short- and longer-term Pennsylvania residents is
well-established by the foregoing body of Supreme Court
precedent. Moreover, our conclusion that the appropriate
penalty analysis must compare shorter-term with longer-
term Pennsylvania residents has been reached by
numerous other federal and state courts that have
considered this precise, or substantially similar, issue.8
_________________________________________________________________

8. See Roe v. Anderson, 966 F. Supp. 977, 984-85 (E.D. Cal. 1997),
aff 'd, 134 F.3d 1400, 1404-05 (9th Cir. 1998), petition for cert. filed,
(U.S. July 9,1998) (No. 98-97); Green v. Anderson, 811 F. Supp. 516,
521 (E.D. Cal. 1993), aff'd, 26 F.3d 95 (9th Cir. 1994), judgment vacated
as unripe, 513 U.S. 557 (1995) (per curiam); Westenfelder v. Ferguson,
998 F. Supp. 146, 154 (D.R.I. 1998); Mitchell v. Steffen, 504 N.W.2d 198,
201-02 (Minn. 1993); Sanchez v. Department of Human Services, ___
A.2d ___, A-466-97T1F, 1998 WL 391584, at *5 (N.J. Super. Ct. App.
Div. July 8, 1998); Brown v. Wing, 649 N.Y.S.2d 988, 995 (N.Y. Sup. Ct.
1996), aff 'd, 241 A.D.2d 956 (1997); see also Aumick v. Bane, 612
N.Y.S.2d 766 (N.Y. Sup. Ct. 1994); Robert C. Farrell, Classifications That
Disadvantage Newcomers and the Problem of Equality, 28 U. Rich. L.
Rev. 547, 609 (1994) (arguing that the "relevant comparison . . . [is]
between newcomers and the established residents of the new state"); cf.
Hicks v. Peters, ___ F. Supp. ___, No. 98C3247, 1998 WL 424176 (N.D.
Ill. July 17, 1998) (declining to reach the issue of whether the Illinois
durational residence statute imposes a penalty because it failed rational
basis review). But cf. Jones v. Milwaukee County, 485 N.W.2d 21 (Wisc.
1992) (finding that a 60 day durational residency requirement for general
relief benefits is "substantially less onerous than the one year waiting
period of Shapiro, . . . does not operate to penalize an individual's
right
to travel," and passes rational basis review).

                               14
From a constitutional standpoint, it is of no consequence
that the Maldonados receive the same benefits that they
would have received in Puerto Rico. Pennsylvania's two-tier
welfare scheme penalizes the Maldonados for having
exercised their right to travel by treating them significantly
less favorably than other similarly situated longer-term
Pennsylvania residents solely because they exercised that
right more recently.

It is well-established "that a State may not impose a
penalty upon those who exercise a right guaranteed by the
Constitution." Harman v. Forssenius, 380 U.S. 528, 540
(1965); accord Dunn v. Blumstein, 405 U.S. at 341. This,
however, is exactly what Pennsylvania's two-tier durational
residence scheme does. The $532 monthly reduction in the
Maldonados' Pennsylvania benefits, based solely on their
newly arrived status amounts to a 64% reduction in cash
benefits and plainly penalizes them for having exercised
their right to migrate into the state.

This point is further reinforced by the holdings in Zobel,
Hooper, and Soto-Lopez, where the Court held
unconstitutional state benefit schemes that were unique to
the states involved and which did not even exist in the
plaintiffs' prior state of residence. See, e.g., Soto-Lopez, U.S.
476 at 907, 911-12 ("Once [out-of-staters] establish bona
fide residence in a State, they become the State's `own' and
may not be discriminated against solely on the basis of [the
date of] their arrival in the State. . . . For as long as [the
State] chooses to offer [a benefit to its residents,] the
Constitution requires that it do so without regard to [time
of] residence.") (citations and internal quotations omitted);
Hooper, 472 U.S. at 623 ("The State may not favor
established residents over new residents based on the view
that the State may take care of `its own,' if such is defined
by prior residence."). Thus, from a constitutional viewpoint,
the level of benefits available to the claimants in the state
of their prior residence is irrelevant. What the Court found
significant, however, was the difference in benefits provided
to the claimants in the state of their new residence based
solely on residential duration. Here too, newer residents,
such as the Maldonados, plainly are "penalized" for having
exercised their right to travel and migrate.

                               15
Thus, because Pennsylvania's durational residency
requirement discriminates against newly arrived residents
and penalizes their fundamental right to travel and migrate,
we hold that Pennsylvania's welfare durational requirement
is subject to strict scrutiny. Accordingly, to pass
constitutional muster, the Commonwealth must show that
the residential requirement is necessary to promote a
compelling state interest and is narrowly drawn to meet
that end. Partly because the Commonwealth argues that
the law should be reviewed under rational basis analysis, it
has not presented anything even remotely resembling a
compelling interest which would justify the law or shown
that it is narrowly tailored to meet its asserted ends.

First, one of the purposes of the statute articulated by
the Commonwealth in the district court is to prevent
Pennsylvania from becoming a "welfare magnet." The
district court found this purpose clearly unconstitutional
under Shapiro and its progeny. We agree, and it does not
warrant additional discussion. See, e.g., Shapiro, 394 U.S.
at 629. Second, the Commonwealth's argument that the
purpose of the durational residency requirement,"and
indeed of Pennsylvania's entire assistance program, is to
encourage work and self-sufficiency over dependency," is
unconvincing. Although unquestionably the encouragement
of self-sufficiency and work is a laudable and legitimate
state goal, the Commonwealth has not demonstrated that
this is a compelling interest or that a two-tier scheme is
necessary to achieve that end. Even assuming arguendo
that the interest is compelling, the scheme clearly is not
narrowly drawn to achieve that goal and arguably, as the
district court found and as applied by the Supreme Court,
is not even rationally related to that purpose.

For instance, the Commonwealth has not demonstrated
why newly arrived residents are more in need of
"encouragement" to join the work force than longer-term
residents. If encouraging work truly were the goal, and
reduced benefits during a waiting period accomplished this
goal, all residents should be subject to a waiting period, not
just new residents. See Shapiro, 394 U.S. at 637 ("A state
purpose to encourage employment provides no rational
basis for imposing a one-year waiting-period restriction on

                               16
new residents only."). Furthermore, the scheme does not
encourage all new residents but only "encourages" those
new residents who arrive from states that provide lower
benefits than Pennsylvania. Moreover, and significantly,
immigrants from abroad receive no encouragement for
under Pennsylvania law they are eligible for the same
benefits as long-term residents. Additionally, the scheme's
irrationality is demonstrated by its application to persons
who migrated to Pennsylvania while employed, but due to
no fault of their own, such as layoffs or plant closings,
became unemployed within their first twelve months in the
state. The law's irrationality is further highlighted as the
scheme applies even to those certified by the
Commonwealth as being temporarily or permanently
physically disabled or otherwise incapable of working, such
as the Maldonados. There simply is no rational reason, let
alone a compelling reason, to assume that only new
residents from states that offer lesser benefits than
Pennsylvania need "encouragement" to seek work and self-
sufficiency.

Amici curiae's proffered reason, that the scheme is
justified by differing expectation and reliance interests--i.e.,
newcomers can more easily adjust to cuts in welfare
benefits through their choice of communities and lifestyles
than longer-term residents who expect to have, and rely on,
the safety net of higher benefits--is not sufficiently
compelling. Even if we assume that many newer residents
can more easily adjust their lifestyles to reduced benefits
than those with longstanding ties to a particular area, an
assumption that is highly speculative, the Commonwealth
again has not demonstrated a compelling interest that
justifies what may amount to a greater than 60% reduction
in an indigent family's cash benefits required to purchase
many of life's necessities.

Furthermore, the legislative scheme is not narrowly
tailored to meet this purpose, as it does not take into
account the myriad of differences in individual personal
and financial situations. For example, most people who own
homes, those who have fixed residential lease obligations,
or those who have countless other longer-term financial
obligations can less easily adjust to reduced benefits

                               17
compared to those persons without similar obligations. The
Commonwealth could use means, need-based, or other
testing to determine if a particular applicant actually can
adjust to reduced welfare benefits. Under any of numerous
scenarios, it is likely that an eleven-month resident of
Pennsylvania who unexpectedly finds herself in need of
welfare benefits will find it just as difficult to survive on
reduced benefits as will a twelve-month resident. Amici
curiae have presented no compelling reason to assume that
all newer residents, and only newer residents, are more
able to easily adjust to and survive on reduced welfare
benefits, nor have they demonstrated that the scheme is
narrowly tailored to affect only those able to adjust to and
survive on reduced welfare benefits. Thus, it is obvious that
the Commonwealth (and Amici) has failed to demonstrate
that its twelve-month durational residency requirement is
necessary to promote a compelling state interest, or that
the legislation is narrowly drawn to meet its stated
objections.

We agree with the district court that there is no
constitutional right to welfare benefits, Dandridge v.
Williams, 98 U.S. 471, 485 (1970), and none is claimed. We
are also aware of a state's legitimate interest in preserving
public funds. When, however, a state makes welfare
benefits available for its indigent, Shapiro and Maricopa
County make it clear that the preservation of the public fisc
may not be achieved by an invidious distinction between
classes of its citizens.

We are mindful, however, as explained by the district
court, that the opinions in several Supreme Court cases
decided since Shapiro and Maricopa County may call into
question the vitality of strict scrutiny review of laws that
burden the fundamental right to interstate travel and
migration. Nevertheless, the Supreme Court has
periodically admonished lower federal courts, and has
recently "reaffirm[ed] its rule that `if a precedent of th[e
Supreme] Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case
which directly controls, leaving to th[e Supreme] Court the
prerogative of overruling its own decisions.' " See Agostini v.

                               18
Felton, 117 S. Ct. 1997, 2017 (1997) (quoting Rodriguez de
Quijas v. Shearson/American Express, Inc., 490 U.S. 477,
484 (1989)). Because Shapiro and Maricopa County have
never been overruled by the Court, we follow the Court's
directive and conclude that they dictate the result of this
case.9 We note, however, that our opinion is in no way
meant to pass judgment on the wisdom or desirability of
the Pennsylvania legislature's attempt at welfare reform.

III.

In conclusion, we affirm the district court's order that the
Maldonados have shown that they were likely to succeed in
proving that Commonwealth's twelve-month durational
residence requirement is unconstitutional. Thus, the court's
grant of a preliminary injunction was not an abuse of
discretion. We conclude, however, that the court
erroneously subjected the law to rational basis analysis
instead of the requisite strict scrutiny. The Commonwealth
has not demonstrated that the scheme is necessary to
promote a compelling state interest, or that it is narrowly
_________________________________________________________________

9. On appeal, the Maldonados once again argue that Section 9(5)(ii)
violates the Privileges and Immunities Clauses of Article IV and the
Fourteenth Amendment. As shown by the almost complete lack of
citation to authority in their brief, this argument is almost completely
without merit. But see Zobel, 457 U.S. at 71-81 (O'Connor, J.
concurring) (finding the right to travel rooted in the Privileges and
Immunities Clause). The Supreme Court has consistently interpreted
Article IV, S2--the Privileges and Immunities Clause--to be a limit on the
ability of a state to discriminate against out-of-state residents. The
Clause, "in effect, prevents a State from discriminating against citizens
of other States in favor of its own." Hague v. Committee for Indus. Org.,
307 U.S. 496, 511 (1939). As a necessary prerequisite for the Privileges
and Immunities Clause to apply, it must be shown that a state
discriminated against a citizen of another state. See, e.g, United Bldg. &
Constr. Trades Council v. Mayor and Council of Camden, 465 U.S. 208,
218 (1984); Zobel, 457 U.S. at 59 n.5. Here, by contrast, the
Pennsylvania statute is applicable only to bonafide Pennsylvania-state
residents and does not discriminate against nonresidents in any way.
The only way to fall under the challenged scheme is to first become a
resident of the Commonwealth of Pennsylvania. Accordingly, the
Privileges and Immunities Clause has no application to the issues
presented by this appeal.

                               19
tailored to accomplish its stated goal. Accordingly, we hold
that Pennsylvania's two-tier durational residency
requirement for welfare benefits is unconstitutional as it is
based solely on a citizen's length of residing in the state;
the scheme impermissibly penalizes citizens who have
exercised their fundamental right to travel and migrate
interstate, and thus violates the Equal Protection Clause of
the Fourteenth Amendment.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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