FILED: May 25, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

TABITHA PRICE,

Petitioner,

v.

DEPARTMENT OF HUMAN SERVICES,

Respondent.

State of Oregon
20080734
A141414

Argued and submitted on December 02, 2010.

Sarah Radcliffe argued the cause for petitioner. On the brief was Deborah G. Weston, Oregon Law Center. On the reply brief was Sarah Radcliffe.

Judy C. Lucas, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Rosenblum, Senior Judge.

SCHUMAN, P. J.

Reversed and remanded.

SCHUMAN, P. J.

Claimant seeks review of an order of the Department of Human Services (the department) determining that claimant's household is ineligible for Temporary Assistance to Needy Families (TANF), a state and federally funded program that benefits children who are "deprived of parental support" because of, among other things, the unemployment of a parent. ORS 412.001(3)(a)(A). The department based its denial on its administrative rule providing that no deprivation occurs "based on unemployment" if the parent who is the primary wage earner has been or would be disqualified from receiving unemployment compensation. OAR 461-125-0170(4) (2007).(1) According to claimant, the statutes governing administration of the TANF program require the state to provide benefits to all two-parent families in which the primary wage earner is unemployed, with a single exception: families where that wage earner is unemployed because he or she refuses without good cause to accept employment. Claimant contends that, by creating an exception that disqualifies more households than are contemplated by the legislature, the rule exceeds the department's statutory authority and is therefore invalid. ORS 183.400; Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 687 P2d 785 (1984). Consequently, claimant argues, the order must be reversed because it is based on the rule.(2) We reverse.

Oregon's TANF program is an outgrowth of federal programs beginning in the 1930s with Aid to Families with Dependent Children (AFDC), 42 USC section 606(a). The United States Supreme Court's opinion in Batterton v. Francis, 432 US 416, 419, 97 S Ct 2399, L Ed 2d 448 (1977), provides a convenient history. Congress first created a welfare program for two-parent families in 1961, known as AFDC-UF, "to provide assistance in some cases where the unemployment of a parent causes dependent children to be needy." Id. States that elected to participate in the program were required to provide assistance where a needy child "has been deprived of parental support or care by reason of the unemployment (as determined in accordance with standards prescribed by the Secretary) of his father"; states opting to participate received matching funds from the federal government. Id. at 419.

In Batterton, the Supreme Court considered and rejected a challenge to a Maryland administrative rule, patterned after 45 CFR