LOUIS W. SULLIVAN, SECRETARY OF HEALTH AND HUMAN SERVICES, PETITIONER V. ELIZABETH STROOP, ET AL. No. 89-535 In The Supreme Court Of The United States October Term, 1989 The Solicitor General, on behalf of the Secretary of Health and Human Services, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fourth Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit PARTIES TO THE PROCEEDINGS The petitioner is the Secretary of Health and Human Services. The respondents are plaintiffs Elizabeth Stroop, Melissa Lam by her next friend Elizabeth Stroop, Bret Lam by his next friend Elizabeth Stroop, Jamie Stroop by her next friend Elizabeth Stroop, Geneva Powers, Crystal McClanahan by her next friend Geneva Powers, Dorothy Brown, and Robert Lee Turner by his next friend Dorothy Brown, on behalf of themselves and all others similarly situated. The plaintiffs in the district court included Karen B. Carter, Ragene Carter by her next friend Karen B. Carter, Paul Jones, Cory P. Jones by his next friend Paula Jones, and David L. Jones, but they were neither appellants nor appellees in the court of appeals. The Commissioner of the Virginia Department of Social Services was a defendant in the district court and a separate appellee in the court of appeals; this petition does not raise the issue on which the Commissioner was an appellee, and, unlike the Secretary of Health and Human Services, the Commissioner was not an appellant in the court of appeals regarding the issue addressed in this petition. TABLE OF CONTENTS Question Presented Parties To The Proceedings Opinions below Jurisdiction Statutory and regulatory provisions involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-13a) is reported at 870 F.2d 969. The opinions of the district court (App., infra, 14a-22a, 23a-27a) are unreported. JURISDICTION The judgment of the court of appeals was entered on March 28, 1989. A petition for rehearing with suggestion for rehearing en banc was denied on May 31, 1989 (App., infra, 31a-34a). On August 25, 1989, Chief Justice Rehnquist extended the time for filing a petition for writ of certiorari to September 28, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY AND REGULATORY PROVISIONS INVOLVED Sections 402(a)(7)(A) and (8)(A)(vi), 457(b)(1), and 202(d)(1) of the Social Security Act (42 U.S.C. 602(a)(7)(A) and (8)(A)(vi) (Supp. V 1987); 42 U.S.C. 657(b)(1) (Supp. V 1987); 42 U.S.C. 402(d)(1) (1982 & Supp. V 1987)) are set forth in the appendix (at 35a-39a). Aid to Families with Dependent Children (AFDC) regulations 45 C.F.R. 302.51(b)(1) and 45 C.F.R. 232.20(a) and (d) are set forth in the appendix (at 40a-41a). QUESTION PRESENTED Whether Social Security child's insurance benefits, paid under 42 U.S.C. 402(d), are "child support payments" within the meaning of an Aid to Families With Dependent Children (AFDC) provision, 42 U.S.C. 602(a)(8)(A)(vi), which requires that the first $50 per month of child support payments be disregarded in determining AFDC eligibility and assistance levels. STATEMENT This case concerns the scope of the $50 per month disregard for "child support payments" that Congress has required the States to apply in determining eligibility and assistance levels under the AFDC program. 1. The Aid to Families with Dependent Children (AFDC) program, set forth in Title IV of the Social Security Act (42 U.S.C. 601 et seq.), is a cooperative effort by the federal and state governments to provide financial and other assistance on behalf of certain dependent children. For purposes of the AFDC program, a "dependent child" is a needy child who has been deprived of parental care or support by a parent's death, incapacity, or continued absence from the home. 42 U.S.C. 606(a). State participation in the AFDC program is not mandatory, but participating States must follow all applicable federal requirements. Among those requirements are statutory provisions directing the States to consider all income and resources available to the recipient family before determining the need-based amount of AFDC assistance (42 U.S.C. 602(a)(7) (Supp. V 1987)), and provisions specifying various categories of income and resources that are to be "disregarded" in making the determination of an applicant's eligibility (42 U.S.C. 602(a)(8)(A) (Supp. V 1987)). In addition, an AFDC recipient must assign to the State rights of support (42 U.S.C. 602(a)(26)(A) (Supp. V 1987)), including child support payments, and federal law specifies standards and procedures for state recovery of child support payments from noncustodial parents. 42 U.S.C. 651-665. Child's insurance benefits are provided as part of the Old Age, Survivors and Disability Insurance (OASDI) program, set forth in Title II of the Social Security Act (42 U.S.C. 401 et seq.). Child's insurance benefits are available to children if a child's parent was an insured wage earner under the Social Security Act and the insured wage earner has died, become disabled, or retired. 42 U.S.C. 402(d) (1982 & Supp. V 1987). Consequently, child's insurance benefits under Title II are often payable to children who are also members of an AFDC household, including households headed by someone other than the insured parent. 2. In 1984, Congress enacted the Deficit Reduction Act of 1984 (DEFRA), Pub. L. No. 98-369, 98 Stat. 494, a massive statute filling over 700 pages of the statutes at large and including two major divisions, the Tax Reform Act of 1984 and the Spending Reduction Act of 1984. See Bowen v. Gilliard, 483 U.S. 587, 589 n.2 (1987). As one of its spending reduction provisions, DEFRA amended Title IV of the Social Security Act to require that, in making AFDC eligibility determinations, the income of any sibling or parent living in the same household would be included as part of the AFDC applicant family's income. Section 2640(a), 98 Stat. 1145; 42 U.S.C. 602(a)(38) (Supp. V 1987)). In Bowen v. Gilliard, supra, this Court upheld the constitutionality of the family income requirement. DEFRA also included a provision specifying that $50 per month of "any child support payments" should be disregarded in determining AFDC eligibility and assistance levels; /1/ a parallel provision specified that the first $50 per month of support payments received by the State from noncustodial parents should be passed on directly to the AFDC recipients. /2/ 3. The Secretary of Health and Human Services (HHS) promulgated regulations to implement various DEFRA changes in the AFDC program. 49 Fed. Reg. 35,586-35,606 (1984). To implement the family income requirement, the Secretary issued a regulation requiring that an AFDC application for a dependent child include the income of any sibling or parent living in the same household. 49 Fed. Reg. 35,599 (1984); 45 C.F.R. 206.10(a)(1)(vii). To implement the $50 per month disregard for child support payments, the Secretary issued regulations requiring a $50 per month disregard for child support payments received from absent parents. 49 Fed. Reg. 35,599, 35,605-35,606 (1984); 45 C.F.R. 232.20(a) and (d); 45 C.F.R. 302.51(b)(1). /3/ However, the Secretary did not issue regulations requiring a $50 per month disregard for any other type of payments, including child's insurance benefits. 4. On June 23, 1986, respondents filed a class action against the Secretary of HHS and the Commissioner of the Virginia Department of Social Services. /4/ The named plaintiffs consisted of five families in which at least one child received AFDC benefits and at least one sibling received either child support payments from a noncustodial parent or child's insurance benefits -- income which had been excluded from the AFDC eligibility determination before DEFRA's adoption of the family income requirement. Respondents challenged the family unit rule itself as unconstitutional and contrary to various Social Security Act provisions. Compl., C.A. App. 2. However, after the decision in Bowen v. Gilliard, 483 U.S. 587 (1987), upholding the constitutionality of the family income requirement, respondents voluntarily dismissed their challenge to the family income requirement. App., infra, 14a. Respondents then refocused their action as a challenge to the inclusion of child's insurance benefits as "income" for purposes of the family income requirement, and, alternatively, to the exclusion of child's insurance benefits from the $50 per month disregard for "child support payments." On December 21, 1987, the district court (App., infra, 14a) upheld the Secretary's inclusion of child's insurance benefits as "income" under the family income requirement. The court rejected respondents' contention that inclusion of the child's insurance benefits as income would violate the anti-alienation (42 U.S.C. 407(a) (Supp. V 1987)) and representative payee (42 U.S.C. 408(e)) provisions of Title II of the Social Security Act (42 U.S.C. 401 et seq.) and found "no evidence" to suggest that the Secretary's interpretation requiring such inclusion was incorrect. App., infra, 18a. The district court went on to hold, however, that contrary to the Secretary's interpretation, the $0 per month disregard for "child support payment" must apply to child's insurance benefits. The court concluded that "(i)t is contradictory to treat Social Security benefits like child support for the purpose of including them in family income and then in another part of the same statute treat them differently from child support payments for the purpose of excluding a family from a potential $50 rebate." Id. at 19a-20a. Recognizing that the Secretary's interpretation was due "considerable deference," the court nevertheless found the Secretary's interpretation to be "'demonstrably irrational.'" Id. at 18a (quoting Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565 (1980)). On March 4, 1988, the court issued an opinion denying the Secretary's motion to alter or amend the court's decision concerning the scope of the $50 per month disregard for the child support payments. App., infra, 23a. 5. The court of appeals (App., infra, 1a) affirmed the district court's judgment in its entirety. The court first affirmed the approval of the Secretary's decision to include child's insurance benefits as income under the family income requirement (id. at 5a-8a); it noted that, in so ruling, it joined the Eighth, Ninth, and Eleventh Circuits in rejecting plaintiffs' objections to the inclusion. Id. at 5a. The court also affirmed, however, the district court's rejection of the Secretary's determination that the $50 per month disregard for "child support payments" does not include child's insurance benefits. Id. at 8a-13a. The court stated that it "perceive(d) no distinction between support derived directly from a father's wages and support provided indirectly through Title II payments." Id. at 11a. The court rejected the Secretary's contention that limiting the disregard to payments from absent parents was consistent with a primary purpose of the disregard, as reflected in the purpose of a child support payment disregard adopted in 1974, of encouraging child support payments from absent parents. The court stated that the intent of one Congress could not be inferred from another Congress, and that the AFDC context had changed so much since 1974 that the objective of encouraging payments from absent parents was no longer applicable. The court also stated that this Court in Bowen v. Gilliard, supra, had emphasized a different purpose for the disregard -- mitigating the hardship of the family income requirement -- and found that this purpose was equally applicable to child's insurance benefits. App., infra, 9a-10a. The court of appeals recognized that its decision on the disregard conflicted with the Eighth Circuit's decision in Todd v. Norman, 840 F.2d 608 (1988), which had upheld the Secretary's interpretation. See App., infra, 11a. Although recognizing that the Eighth Circuit had emphasized the congressional distinction between social security benefits and child support payments, the court found this distinction "too tenuous to support the Secretary's interpretation." Ibid. Noting that several States, including Virginia, allow child's insurance benefits to satisfy child support obligations, the court emphasized that child's insurance benefits and parental child support are similar because both are derived from the parent's earnings. Id. at 11a-12a. Finally, the court indicated that the Secretary's "unreasoned distinction raises equal protection concerns" and suggested that rejection of the Secretary's interpretation avoided doubts about its constitutionality. Id. at 12a. /5/ REASONS FOR GRANTING THE PETITION The court of appeals has interpreted a recent congressional enactment in a manner that conflicts with the general statutory usage of the term "child support payments," and totally disregards Congress's subsequent clarification that "child support payments" refer to payments "made by the absent parent." It also rests, at least in part, on wholly unfounded concerns about the constitutionality of excluding child's insurance benefits from the $50 per month disregard. Moreover, its decision directly conflicts with a decision of the United States Court of Appeals for the Eighth Circuit. The issue is of recurring importance to the uniform administration of the AFDC program, and, if the court of appeals' decision is applied nationally, will result in a significant increase in federal and state expenditures. Further review by this Court is therefore plainly warranted. 1. The Social Security Act reflects a pervasive distinction between "child support payments" -- which refer to parental payments -- and other types of income and resources, including child's insurance benefits. In light of the principle that "a legislative body generally uses a particular word with a consistent meaning in a given context" (Erlenbaugh v. United States, 409 U.S. 239, 243 (1972)), this consistent use of the term "child support payments" to refer to parental payments cannot be squared with the court of appeals' statutory interpretation. The term "child support payments" figures prominently in Title IV of the Social Security Act (42 U.S.C. 601 et seq.), and invariably refers to payments from absent parents. This statutory usage was clear at the time Congress enacted DEFRA. The 1982 version of Title IV (42 U.S.C. 601 et seq.) contains more than twenty references to "child support" or "child and spousal support;" in every instance, the reference is to payments from absent parents, and not to child's insurance or other Social Security benefits. /6/ Title IV itself is subdivided into several parts. Part D (42 U.S.C. 651-665) addresses "Child Support and Establishment of Paternity" and includes, inter alia, provisions for the "Office of Child Support Enforcement" in HHS (42 U.S.C. 652); establishment of a Parent Locator Service (42 U.S.C. 653); requirements for a state plan for "child and spousal support" (42 U.S.C. 654); provisions for enforcement of an individual's legal obligation to provide "child support" or make alimony payments (42 U.S.C. 659); and a grant of authority for civil actions to enforce "child support" obligations (42 U.S.C. 660). Throughout this Title, the term "child support" has a specific meaning -- the obligation of parents to support their children. /7/ In contrast to this repeated use of "child support" to refer to parental payments in Title IV, the Social Security Act does not use "child support payments" to refer to child's insurance benefits, or to any other kind of social security benefits. Indeed, under Title II, a child must, in certain circumstances, establish the level of a parent's previous "support" in order to qualify for the government-provided "child's insurance benefit." See, e.g., 42 U.S.C. 402(d)(4) and (8). The fact that child's insurance benefits are intended to replace parental support after a parent has died, become disabled, or retired, Califano v. Jobst, 434 U.S. 47, 52 (1977); Mathews v. Lucas, 427 U.S. 495, 507 (1976), does not mean that the child's insurance benefits themselves are encompassed in the ordinary usage of the term child support payments, and certainly nothing in Title II indicates that the terms are interchangeable. The language of the family income requirement itself also reflects this distinction between child support payments and Social Security benefits. The family income requirement and the child support payment disregard are both part of Section 2640 of DEFRA -- Sections 2640(a) and 2640(c), respectively. While the disregard refers to "child support payments" (Section 2640(c), 98 Stat. 1146), the family income requirement states that the requirement applies "in the case of benefits provided under title II" (Section 2640(a), 98 Stat. 1145). In referring to payments under the Title II OASDI program, then, the statute explicitly refers, not to "child support payments," but to "benefits." Additionally, the problem of obtaining "child support" from absent parents has frequently been the subject of intense congressional attention, and the term "child support" in this context has always referred to the problem of parental payments. See, e.g., FSA, Tit. I, 102 Stat. 2343-2356 ("Child Support and Establishment of Paternity"); Pub. L. No. 98-378, 98 Stat. 1305 ("Child Support Enforcement Amendments of 1984"). Significantly, the latter of these statutes became law less than one month after the enactment of DEFRA, and its use of the term "child support" to refer to parental payments is clear. See, e.g., Section 23(a)(2), 98 Stat. 1329 ("The Congress finds that * * * there is a critical lack of child support enforcement, which Congress has undertaken to address through the child support enforcement program."). Thus, the general statutory usage of the term is directly contrary to the court of appeals' interpretation. 2. The court of appeals' interpretation is also contrary to the purpose of the $50 disregard, as suggested by the available legislative history. Although the phrase "child support payments" is not specifically addressed in the committee reports accompanying the enactment of DEFRA, a similar provision had been adopted by Congress in 1974. /8/ The legislative history of that provision explicitly stated that the purpose of the disregard was to provide an incentive for obtaining child support payments from noncustodial parents. S. Rep. No. 1356, 93d Cong., 2d Sess. 52 (1974). This purpose has no application to child's insurance benefits, which are paid automatically by the federal government. The Fourth Circuit rejected the relevance of this prior history, stating that "the intent of one Congress cannot be inferred from the activities of another Congress." App., infra, 9a. However, when Congress enacts a massive omnibus statute like DEFRA, and adopts specific provisions which are patterned after earlier enactments, it is reasonable to assume, absent some indication to the contrary, that the new provision is designed to further the same purpose as its forerunner. This is especially true where the proposition involves a highly specialized subject matter -- such as the meaning of an AFDC disregard for "child support payments." The distinctions offered by the court of appeals between the situation confronting Congress in 1974 and the situation confronting Congress in 1984 are also unpersuasive. The court's basic contention -- that legislative actions to require family cooperation and improve state incentives for locating delinquent parents had "substantially eviscerated" the justification for the disregard as a parental payment incentive (App., infra, 10a) -- is belied by the repeated congressional findings that nonpayment of child support by noncustodial parents remains a grave national problem. See, e.g., Child Support Enforcement Amendments of 1984, Pub. L. No. 98-378, Section 23(a), 98 Stat. 1329; H.R. Rep. No. 159, 100th Cong., 1st Sess. 40 (1987). Finally, the court of appeal failed to address a recent congressional amendment that clarifies the meaning of the disregard in a manner that substantially supports the Secretary's interpretation of the term "child support payments." Although subsequent congressional statements pose special problems of analysis and interpretation, see United States v. Price, 361 U.S. 304 (1960), subsequent congressional enactments carry "considerable retrospective weight." Heckler v. Turner, 470 U.S. 184, 211 (1985). See also South Carolina v. Regan, 465 U.S. 367, 378-379 n.17 (1984). In October 1988, Congress amended the disregard and pass-through provisions. FSA Section 102, 102 Stat. 2346. The amendment clarifies that the disregard applies to child support payments from absent parents if the payment was made in the month when due. H.R. Conf. Rep. No. 998, 100th Cong., 2d Sess. 98 (1988). /9/ By indicating that disregard and pass-through provisions apply to payments from an "absent parent" (see notes 1, 2, supra), the amendments lend considerable support to the Secretary's contention that Congress did not contemplate that the disregard would apply to other payments. Despite the submission of a post-argument memorandum by the government addressing the amendment, the court of appeals did not address, or even acknowledge, this change. 3. The court of appeals failed to give appropriate deference to the Secretary's administrative interpretation. "(I)f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 843 (1984). /10/ Despite its acknowledgment that "Congress has offered no answer to this question" (App., infra, 8a-9a), the court of appeals failed to defer to the interpretation provided by the agency charged by Congress with the administration of the AFDC program. Cf. Lewis v. Martin, 397 U.S. 552, 559 (1970) ("(w)e give HEW the deference due the agency charged with the administration of the (Social Security) Act" in AFDC case); Rosado v. Wyman, 397 U.S. 397, 415 (1970) (HEW's construction of AFDC provision "is entitled to weight as the attempt of an experienced agency to harmonize an obscure enactment with the basic structure of a program it administers"). /11/ In response to DEFRA, the Secretary promulgated regulations to implement the changes to the AFDC program. 49 Fed. Reg. 35,586-35,606 (1984). The Secretary established a procedure for state agencies to follow in forwarding the first $50 of parental support payments to a family (45 C.F.R. 302.51(b)(1)), and required that $50 per month of the child support collections be excluded from AFDC eligibility and assistance determinations (45 C.F.R. 232.20(a) and (d)). The Secretary did not, however, promulgate any regulations to apply the $50 disregard to any form of payments other than parental support payments, such as child's insurance benefits. See 49 Fed. Reg. 35,589-35,590, 35,604-35,605 (1984). /12/ The Secretary thus interpreted DEFRA and determined that the child support disregard applied to parental child support payments; that interpretation was entitled to the deference accorded the agency charged with interpreting and administering a complex statute. /13/ 4. The court of appeals also relied on concerns about the constitutionality of the disregard. App., infra, 12a. However, a congressional determination to disregard the first $50 of child support payments from noncustodial parents, but not child's insurance benefits, easily passes constitutional muster. The evident purpose of providing that the first $50 of child support payments will not be counted in determining eligibility for AFDC benefits was to help secure the cooperation of beneficiaries in the collection of support payments from noncustodial parents and to provide a payment incentive for the noncustodial parents. No such incentives are needed with respect to child's insurance benefits, whose payment is guaranteed by the federal government. In view of the fact that this kind of "statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it" (Bowen v. Gilliard, 483 U.S. at 601 (internal quotations omitted)), this difference is surely sufficient to sustain limiting the disregard to parental support payments. The problem of nonpayment of child support remains a congressional priority. /14/ Despite the court of appeals' pessimism about the efficacy of a $50 incentive in light of subsequent developments, it was clearly permissible for Congress to decide that a further incentive to collection and payment of parental support payments was needed. See generally Dandridge v. Williams, 397 U.S. 471 (1970). The court of appeals also observed that this Court, in Bowen v. Gilliard, found that the purpose of the disregard was to mitigate the hardship of the family income requirement, and that such a purpose is equally applicable to child's insurance benefits. App., infra, 10a. But nothing in Bowen v. Gilliard suggests that mitigating hardship is the sole purpose of the disregard, and nothing in that opinion is inconsistent with a view that one aspect of the disregard was an effort to encourage child support payments from noncustodial parents. The payments involved in Gilliard were child support payments from noncustodial parents, and thus this Court had no occasion to consider possible differences between those payments and child's insurance benefits. The passage quoted by the court of appeals described the operation of the disregard in the context before the Court; it clearly was not a holding about the sole purpose of the disregard, or its scope. 5. Resolution of the issue presented by this case is essential to the uniform administration of the AFDC program. As the court of appeals recognized, its decision squarely conflicts with the Eighth Circuit's decision in Todd v. Norman, 840 F.2d 608 (1988). In Todd, the Eighth Circuit explicitly rejected the claim that "Congress intended the words 'child support payment' to apply to Child's Insurance Benefits." Ibid. The Eighth Circuit and the Fourth Circuit disagree on the purpose of the disregard (840 F.2d at 612; App., infra, 10a), on the weight to be given the prior disregard (840 F.2d at 611-612; App., infra, 9a-10a), on the deference to be given the Secretary's interpretation (840 F.2d at 612; App., infra, 10a-12a); and on the rationality of limiting the disregard to parental support payments (840 F.2d at 612; App., infra, 12a). /15/ State courts have issued similarly conflicting opinions. /16/ The issue also has significant fiscal implications. HHS estimates that the court of appeals' decision, if applied nationwide, would require increased annual expenditures of close to $44 million in federal and state outlays. /17/ The Fourth Circuit's decision may also have an impact in other areas. At least two cases are now pending in which the claim has been made that veterans' benefits are similarly entitled to the $50 disregard. /18/ In view of the conflicting interpretations by the courts of appeals and of the recurring importance of this issue, further review is clearly warranted at this time. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. KENNETH W. STARR Solicitor General STUART E. SCHIFFER Acting Assistant Attorney General THOMAS W. MERRILL Deputy Solicitor General CLIFFORD M. SLOAN Assistant to the Solicitor General ROBERT S. GREENSPAN ROBERT D. KAMENSHINE Attorneys SEPTEMBER 1989 /1/ The disregard provision (DEFRA Section 2640(c), 98 Stat. 1146) amended the AFDC statute to provide: (I)n making the determination under paragraph (7), the State agency -- * * * * * (vi) shall disregard the first $50 of any child support payments received in such month with respect to the dependent child or children in any family applying for or receiving aid to families with dependent children (including support payments collected and paid to the family under section 657(b) of this title). 42 U.S.C. 602(a)(8)(A)(vi) (Supp. V 1987). In 1988, Congress further amended this disregard provision (Family Support Act of 1988 (FSA), Pub. L. No. 100-485, Tit. I, Section 102(a), 102 Stat. 2346). The current child support disregard provides: (I)n making the determination under paragraph (7), the State agency * * * (vi) shall disregard the first $50 of any child support payments for such month received in that month and the first $50 of child support payments for each prior month received in that month if such payments were made by the absent parent in the month when due, with respect to the dependent child or children in any family applying for or receiving aid to families with dependent children (including support payments collected and paid to the family under section 657(b) of this title). To be codified at 42 U.S.C. 602(a)(8)(A)(vi) (emphasis added to show change from prior statute). /2/ The pass-through provision provided: (T)he first $50 of such amounts as are collected periodically which represent monthly support payments shall be paid to the family without affecting its eligibility for assistance or decreasing any amount otherwise payable as assistance to such family during such month. DEFRA Section 2640(b), 98 Stat. 1145; 42 U.S.C. 657(b)(1) (Supp. V 1987). In 1988, Congress amended this provision (FSA Section 102(b), 102 Stat. 2346) to conform with the 1988 amendment to the disregard provision. See note 1, supra. The current pass-through provides: (O)f such amounts as are collected periodically which represent monthly support payments, the first $50 of any payments for a month received in that month, and the first $50 of payments for each prior month received in that month which were made by the absent parent in the month when due shall be paid to the family without affecting its eligibility for assistance or decreasing any amount otherwise payable as assistance to such family during such month. To be codified at 42 U.S.C. 657(b)(1) (emphasis supplied to show change from prior statute). /3/ The disregard and pass-through procedures were recently revised. 54 Fed. Reg. 32,308-32,309 (Aug. 4, 1989); 54 Fed. Reg. 37,870 (Sept. 13, 1989). The Secretary has also determined that an absent parent's spousal support payments are included in the $50 disregard. 53 Fed. Reg. 21,642 (1988). /4/ Although the Commissioner of the Virginia Department of Social Services is technically a respondent, Sup. Ct. R. 19.6, references in this petition to "respondents" refer to plaintiffs. /5/ Although the government submitted a post-argument memorandum concerning the FSA 1988 amendment (see note 1, supra), contending that it supported the Secretary's position, the court of appeals failed to discuss, or even acknowledge, the 1988 change. /6/ See 42 U.S.C. 602(a)(27) ("child support"); 42 U.S.C. 602(a)(28) ("child support"); 42 U.S.C. 602(a)(31)(D) ("child support"); 42 U.S.C. 603(b)(2)(C) ("child support collections"); 42 U.S.C. 603a ("child support"); 42 U.S.C. 652(a)(1) ("child support"); 42 U.S.C. 652(a)(7) ("child and spousal support"); 42 U.S.C. 652(a)(10)(B) ("Office of Child Support Enforcement"); 42 U.S.C. 652(a)(10)(C) ("child support"); 42 U.S.C. 652(b) ("child support"); 42 U.S.C. 653(c)(1) ("child and spousal support"); 42 U.S.C. 654 ("child and spousal support"); 42 U.S.C. 654(6) ("child support"); 42 U.S.C. 654(19)(A) ("child support"); 42 U.S.C. 654(19)(B) ("child support"); 42 U.S.C. 656(b) ("child support"); 42 U.S.C. 657(a) ("child support"); 42 U.S.C. 659(a) ("child support"); 42 U.S.C. 659(b) ("child support"); 42 U.S.C. 659(d) ("child support"); 42 U.S.C. 661(b)(3) ("child support"); 42 U.S.C. 662(b) ("child support"). The 1982 version of Title IV also contains several references to "support payments" and "support obligations" that clearly refer only to payments from absent parents. See 42 U.S.C. 602(a)(26)(B) ("support payments"); 42 U.S.C. 651 ("support obligations"); 42 U.S.C. 653(a) ("support obligations"); 42 U.S.C. 654(5) ("support payments"). /7/ This usage is consistent with the dictionary definition. See Black's Law Dictionary 217 (5th ed. 1979) ("child support" defined as the "legal obligation of parents to contribute to the economic maintenance, including education of their children; enforceable in both civil and criminal contexts"). /8/ That provision, enacted for a fifteen-month trial period, specified that 40% of the first $50 of monthly "child support" payments collected by the State pursuant to the assignment of support rights would be passed through and disregarded in AFDC eligibility determinations. Social Services Amendments of 1974, Pub. L. No. 93-647, Section 101(a), 88 Stat. 2356. /9/ Both the House and Senate Committee reports stated that the change was intended as a clarification. H.R. Rep. No. 159 100th Cong., 1st Sess. 73 (1987); S. Rep. No. 377, 100th Cong., 2d Sess. 17 (1988). The Senate Committee report noted that the Committee viewed the amendment as reflecting "the original intent" (id. at 17), that "differences of interpretation may exist" (ibid.), and that "(t)he Committee does not intend that an inference should be drawn from the enactment of this provision or its effective date as to the meaning of the law as previously in effect" (ibid.). The Senate report's reference is apparently to a dispute over the applicability of the disregard to late parental child support payments. See, e.g., Wilcox v. Ives, 864 F.2d 915 (1st Cir. 1988) (invalidating 45 C.F.R. 302.51(b)(1) because it prohibits pass-through for multiple payments). /10/ See also Young v. Community Nutrition Institute, 476 U.S. 974, 980-981 (1986); Chemical Manufacturers Ass'n v. NRDC, 470 U.S. 116, 125 (1985). /11/ In 1979, HHS replaced the Department of Health, Education and Welfare (HEW) as the federal agency administering the AFDC program. Department of Education Organization Act, Pub. L. No. 96-88, Tit. V, Section 509(b), 93 Stat. 695; 20 U.S.C. 3508(b). /12/ An absent parent's spousal support payments are included in the disregard. See note 3, supra; 53 Fed. Reg. 21,642 (1988). /13/ Although the dissent in the Eighth Circuit case stated that the Secretary's interpretation was not entitled to deference because it was "neither consistent nor longstanding," Todd v. Norman, 840 F.2d at 614 (Lay, C.J., dissenting), the majority concluded that the Secretary "has consistently maintained that only child support payments assigned to the state trigger the disregard." Id. at 612. /14/ See, e.g., Child Support Enforcement Amendments of 1984, Pub. L. No. 98-378, Section 23(a), 98 Stat. 1329; 134 Cong. Rec. S7651 (daily ed. June 13, 1988) (statement of Sen. Bentsen) ("If we want to reform the welfare system, let us start with an all-out effort to collect child support. The Congress enacted strong legislation in 1975 and in 1984, but despite that legislation only a small fraction of children who live with single parents receive the full credit as awarded to them by the courts. Many receive nothing at all."). /15/ See also Jackson v. Mullany, 708 F. Supp. 483 (N.D.N.Y. 1989) (disregard includes child's insurance benefits); Davis v. Sallee, No. Civ. 4-86-27 (E.D. Tenn. Oct. 10, 1986) (same); McBee v. Sallee, No. Civ. 2-86-103 (E.D. Tenn. Nov. 26, 1986) (same). /16/ Compare Baylor v. New Jersey Dep't of Human Services, 235 N.J. Super. 22,561 A.2d 618 (1989) (disallowing disregard for child's insurance benefits) with Ledbetter v. Foster, 180 Ga. App. 696, 350 S.E. 2d 31 (1986) (permitting disregard for child's insurance benefits). See also In re D'Antignac, No. 16444-86 (N.Y. Sup. Ct. Oct. Oct. 3, 1986) (permitting disregard for child's insurance benefits). /17/ In 1986, almost 460,000 AFDC families received unearned income (U.S. Dep't of Health and Human Services, Family Support Administration, Characteristics and Financial Circumstances of AFDC Recipients 1986, at 77; 15.9% of these AFDC families -- or approximately 73,000 -- received social security benefits (ibid.). Although HHS does not separate child's insurance benefits from other social security benefits, the Department believes that almost all of the families in this category received child's insurance benefits. A disregard of $50 per month amounts to $600 per year for each recipient family. The cost of the disregard for 73,000 families at $600 per year is $43.8 million annually. /18/ Trusty v. Cullen, No. 88-C-0322 (E.D. Wisc.); Green v. Sullivan, No. Civ. 89-0529A (W.D.N.Y.). APPENDIX