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Subject: 89-535--DISSENT, SULLIVAN v. STROOP




        SUPREME COURT OF THE UNITED STATES


No. 89-535



LOUIS W. SULLIVAN, SECRETARY OF HEALTH
AND HUMAN SERVICES, PETITIONER v.
ELIZABETH STROOP et al.


on writ of certiorari to the united states court of appeals for the fourth
circuit

[June 14, 1990]



    Justice Blackmun, with whom Justice Brennan and Justice Marshall join,
dissenting.
    Today the Court holds that the plain language of a statute applicable
by its terms to "any child support payments" compels the conclusion that
the statute does not apply to benefits paid to the dependent child of a
disabled, retired, or deceased parent for the express purpose of supporting
that child.  Because I am persuaded that this crabbed interpretation of the
statute is neither compelled by its language nor consistent with its
purpose, and arbitrarily deprives certain families of a modest but urgently
needed welfare benefit, I dissent.

I
    I begin, as does the majority, with the plain language of the disregard
provision.  It refers to "any child support payments received . . . 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)." {1}  42 U. S. C. 602(a)(8)(A)(vi) (1982 ed. Supp. V) (emphasis
added).  This language does not support the majority's narrow
interpretation.  The word "any" generally means all forms or types of the
thing mentioned.  When coupled with the parenthetical phrase "including . .
. ," it in dicates that "support payments collected and paid" by the State
constitute one type within the larger universe of "child support payments."
As the majority recognizes, 602(a)(26)(A) requires all applicants for AFDC
to "assign the State any rights to support from any other person . . ."
Thus, support payments from absent parents will almost always fall within
the parenthetical clause referring to "support payments collected and paid"
by the State.  The plain words of the disregard provision indicate that
such pay- ments are only one of various types of child-support payments;
limiting the meaning of child support to an absent parent's payments
renders the statutory language "any child support payments . . . including
. . ." meaningless.
    The majority's insistence that the ordinary meaning of the term "child
support" excludes Title II payments makes little sense.  Title II is a
program of mandatory wage de ductions, designed to ensure that a worker's
dependents will have some income, should the worker retire, die, or become
disabled.  Califano v. Boles, 443 U. S. 282, 283 (1979) (Title II "attempts
to obviate, through a program of forced sav- ings, the economic
dislocations that may otherwise accompany old age, disability, or the death
of a breadwinner").  Thus, the worker is legally compelled to set aside a
portion of his wages in order to earn benefits used to support his
dependent children in the event he becomes unable to do so himself.  A
child is entitled to Title II payments only if he or she lived with, or
received financial support from, the insured worker, that is, only if the
relationship between the child and the insured worker would (or did) give
rise to a legally enforceable support obligation.  42 U. S. C. 402(d) (1982
ed. and Supp. V).  The sole and express purpose of Title II childrens'
benefits is to support dependent children.  Jimenez v. Weinberger, 417 U.
S. 628, 634 (1974) ("the primary purpose of the . . . Social Security
scheme is to provide support for dependents of a disabled wage earner");
Mathews v. Lucas, 427 U. S. 495, 507 (1976) ("the Secretary explains the
design of the statutory scheme . . . as a program to provide for all
children of deceased [or disabled] insureds who can demonstrate their
`need' in terms of dependency"); see also Mathews v. De Castro, 429 U. S.
181, 185-186, and n. 6 (1976).  It is unlawful to use Title II payments for
any other purpose.  42 U. S. C. 408(e). {2}
    How are Title II payments different from court-ordered payments by an
absent parent?  Their source is the same: a parent's wages or assets. {3}
Their purpose is the same: to provide for the needs of a dependent child,
in lieu of the support of a working parent living in the home.  The
majority does not even attempt to explain why the common usage and
understanding of the term "child support" would include all the types of
payments the Secretary says the disregard provision covers, legally
compulsory payments from absent parents, voluntary payments, {4} and even
spousal support payments {5}, but would exclude Title II payments.
    Nonetheless, the majority insists that Title II payments do not
constitute "child support."  The majority points to the use of the term
"child support" in Part D of Title IV to refer to court-ordered support
payments by absent parents.  This begs the question.  Naturally, Congress
was referring to compulsory support payments in Part D, because that part
of the statute is concerned with "enforcing the support obligations owed by
absent parents to their children."  42 U. S. C. 651 (1982 ed. Supp. V).
Other types of child support, such as payments voluntarily made by absent
parents, or payments made by the Government on behalf of dead, disabled, or
retired parents, do not involve the same problems of enforcement. {6}
Nowhere in Part D did Congress actually define "child support," nor does
Part D or any other provision of Title IV indicate that Congress thought
the term "child support" referred only to compulsory payments, or only to
payments made directly by the absent parent.
    The majority relies on the maxim of statutory construction that
identical words in two related statutes, or in different parts of the same
statute, are intended to have the same meaning.  Ante, at 6.  Like all such
maxims, however, this is merely a general assumption, and is not always
valid or applicable.  In Erlenbaugh v. United States, 409 U. S. 239 (1972),
for example, the Court declined to follow this maxim, because it was
invoked not simply to resolve any ambiguities or doubts in the statutory
language, but, as in this case, "to introduce an exception to the coverage
of the [statute] where none is now apparent."  Id., at 245.  The Court
commented: "[T]his might be a sensible construction of the two statutes if
they were intended to serve the same function, but plainly they were not."
Ibid.  It went on to explain that the two statutes had different purposes
and the reason for the limited scope of one was absent in the context of
the other.  Id., at 245-247.  See also District of Columbia v. Carter, 409
U. S. 418, 421 (1973) ("At first glance, it might seem logical simply to
assume . . . that identical words used in two related statutes were
intended to have the same effect.  Nevertheless . . . the meaning well may
vary to meet the purposes of the law") (internal quotation marks omitted);
Helvering v. Stockholms Enskilda Bank, 293 U. S. 84, 87 (1934) ("since most
words admit of different shades of meaning, susceptible of being expanded
or abridged to conform to the sense in which they are used, the presumption
readily yields [when] the words, though in the same act, are found in . . .
dissimilar connections").  This Court's articulation of the limits of the
maxim in Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427
(1932), bears repeating, for it remains true today:

"But the presumption is not rigid and readily yields whenever there is such
variation in the connection in which the words are used as reasonably to
warrant the conclusion that they were employed in different parts of the
act with different intent . . . .  [T]he meaning well may vary to meet the
purposes of the law, to be arrived at by a consideration of the language in
which those purposes are expressed, and of the circumstances under which
the language was employed . . . .
    "It is not unusual for the same word to be used with different meanings
in the same act, and there is no rule of statutory construction which
precludes the courts from giving to the word the meaning which the legis
lature intended it should have in each instance."  Id., at 433.


    I conclude that the plain language of the statute does not
unequivocally support the Secretary's interpretation.  It is equally
consistent with the opposite conclusion, that Title II payments fall within
the broad, inclusive phrase "any child support payments."  It is therefore
proper to turn to the purpose and history of the disregard provision for
aid in construing that provision.

II
    The majority, in its conservatively restrictive approach, makes only
passing reference to the hardship brought about by the DEFRA amendments.  A
closer look at the effect of these amendments is necessary to understand
the func- tion of the disregard provision.  DEFRA changed the AFDC statutes
in two ways relevant here.  First, it established the "mandatory filing
unit" requirement, that a family's ap plication for AFDC benefits must take
into account any income received by any member of the family, including all
children living in the same household.  42 U. S. C. 602(a)(38) (1982 ed.
Supp. V).  See Bowen v. Gilliard, 483 U. S. 587, 589 (1987).
    Under prior law, parents could choose to exclude from their AFDC
applications children who received income from other sources.  This
exclusion, in some circumstances, was advantageous to the family; although
the family then would not receive AFDC funds for the excluded child, that
child's income would not be considered in determining its overall AFDC
eligibility.  Thus, in situations where a child's separate income was
greater than the incremental amount of AFDC benefits the family would
receive for that child, the family was better off not counting the child in
its AFDC application.
    Along with the new requirement, however, Congress enacted the provision
at issue here.  The Court in Gilliard explained:

    "Because the 1984 amendments forced families to include in the filing
unit children for whom support payments were being received, the practical
effect was that many families' total income was reduced.  The burden of the
change was mitigated somewhat by a separate amendment providing that the
first $50 of child support collected by the State must be remitted to the
family and not counted as income for the purpose of determining its benefit
level."  Id., at 594. {7}


    The legislative history of the DEFRA amendments supports the conclusion
that the disregard provision was intended to mitigate the harsh effects of
the amendments.  The mandatory filing-unit provision was first proposed by
the Secretary in 1982, but it was dropped in Conference because of
opposition in the House.  See H. R. Conf. Rep. No. 97- 760, p. 446 (1982).
In 1983, the Secretary again proposed this provision, and it was approved
by the Senate.  S. Rep. No. 98-300, p. 165 (1983).  Again, there was
opposition in the House, and consideration of the provision was carried
over to the next session.  House Committee on Ways and Means, Description
of the Administration's 1985 Budget, Comm. Print No. 98-24, pp. 25, 29-30
(1984).  In 1984, the provision was added by the Senate amendments to H. R.
4170, the bill that became DEFRA.  The report of the House-Senate
Conference Committee explains:

"The conference agreement follows the Senate amendment with the following
modification: a monthly disregard of $50 of child support received by a
family is established."  H. R. Conf. Rep. No. 98-861, p. 1407 (1984).


    Neither the House bill nor the Senate bill had contained a disregard
provision prior to the Conference, nor is there any discussion in the
legislative history of such a provision.  The only plausible explanation
for its sudden appearance is that it was meant to assuage the concerns of
some Members of Congress about the harsh impact of the DEFRA amendments,
and thus to facilitate the passage of the mandatory filing-unit
requirement.
    The burden of the DEFRA amendments falls equally on families with
children receiving Title II benefits and on those with children receiving
court-ordered support payments.  The mitigating purpose of the disregard
provision therefore applies equally to both categories of families.  The
purpose and history of the disregard provision support the Court of
Appeals' interpretation of that provision, and resolve any ambiguity as to
the meaning of the statutory words "any child support payments."
    Since the Secretary's interpretation of the disregard rule is not
compelled by the language of the statute, and is not supported by its
purpose and legislative history, it is not entitled to deference and should
be rejected by this Court.  See NLRB v. Food & Commercial Workers, 484 U.
S. 112, 123 (1987) ("On a pure question of statutory construction, our
first job is to try to determine congressional intent, using `traditional
tools of statutory construction.'  If we can do so, then that
interpretation must be given effect, and the regulations at issue must be
fully consistent with it"); Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc., 467 U. S. 837, 843, n. 9 (1984) ("The judiciary is
the final authority on issues of statutory construction and must reject
administrative constructions which are contrary to clear congressional
intent . . . .  If a court, employing traditional tools of statutory
construction, ascertains that Congress had an intention on the precise
question at issue, that intention is the law and must be given effect").

IV
    Even if the meaning of "child support" in the disregard provision were
ambiguous, however, the Secretary's interpretation should still be rejected
because it is so arbitrary as not to reflect a "permissible construction of
the statute."  Id., at 843.  The Secretary's position is that the disregard
applies to legally compulsory child-support payments, voluntary
child-support payments, and spousal-support payments by absent parents, but
not to Title II payments.  See nn. 4 and 5, supra.
    Consider, for example, a family consisting of a mother and three
children.  One of the children is of a prior marriage, and receives support
from her absent father.  The father voluntarily sets aside a portion of his
wages every month and sends them to the mother for the child's support.
The disregard provision applies.  See n. 4, supra.  Then the father
retires, and stops his voluntary contributions, but the child now receives
Title II benefits each month.  The disregard provision, according to the
Secretary, does not apply.  But then the mother obtains a court order
obligating the father to make child-support payments each month, and he
does so.  The disregard provision applies.  Then the father asks the court
to amend the support order, so that the Title II benefits are used to
satisfy his support obligation.  See n. 2, supra.  The disregard provision,
according to the Secretary, does not apply.
    Throughout this example, the child's and her family's financial needs
remain the same.  The impact of the mandatory filing-unit requirement,
forcing the family to count the child's income in its AFDC application and
thus reducing the level of its benefits, remains the same.  The source of
the child's income, her father's earnings, and the purpose of that income,
to fulfill his duty to provide for the needs of his dependent child, remain
the same.  But the applicability of the disregard provision changes with
the vagaries of the Secretary's regulations.
    The Secretary argues that his interpretation of the dis regard
provision is rational because the disregard serves as an incentive for
absent parents to make support payments, and for custodial parents to
cooperate in enforcement efforts (since $50 of those payments directly
benefits the family, and does not merely reimburse the State for AFDC).
But there is simply no indication that Congress intended to limit the
applicability of the disregard provision to situations in which it would
serve as an incentive.  There is no mention of such a purpose in the
legislative history of the provision; moreover, the Secretary points to no
discussion of the need for such an incentive anywhere in the legislative
history of the DEFRA amendments. {8}
    Even if the disregard rule were intended to serve as an incentive, that
does not justify applying the disregard to all court-ordered support
payments, but not to Title II benefits.  Not all court-ordered support
payments depend on the vol untary compliance of the absent parent; some are
deducted directly from the absent parent's wages, just like Title II
deductions.  See n. 3, supra.  Also, insofar as the disregard serves as an
incentive for the custodial parent to help collect support payments, that
purpose applies to Title II benefits as well as to court-ordered support
payments.  To qualify for Title II benefits, the custodial parent, on
behalf of the child, must complete an application and, if necessary,
establish paternity.  If the disregard does not apply to Title II benefits,
so that they serve only to reduce a family's AFDC eligibility, the
custodial parent has no financial incentive to apply for them.
    Thus, I believe that the Secretary cannot provide any rational
explanation for his view that the disregard provision does not apply to
Title II payments.  Even assuming that the provision is ambiguous and that
Chevron deference is to be considered, I cannot in good conscience defer to
an administrative interpretation that results in an arbitrary and
irrational reduction of welfare benefits to certain needy families.  I view
with regret the Court's acquiescence in an administrative effort to cut the
costs of the AFDC program by any means that are available.
    I dissent.








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1
    42 U. S. C. 657(b) (1982 ed. Supp. V) provides that, when a state
agency collects child or spousal support payments on behalf of a family
receiving AFDC, it shall pay to the family the first $50 of each month's
payment, and retain the rest to reimburse the Government for AFDC
benefits.

2
    The overwhelming majority of state courts that have passed on the
question have concluded that a parent's court-ordered child support obli
gations may be fulfilled by Title II payments, recognizing the functional
equivalence of the two types of payments.  See, e. g., Stroop v. Bowen, 870
F. 2d 969, 974-975 (CA4 1989) (collecting cases); Todd v. Norman, 840 F. 2d
608, 614 and n. 4 (CA8 1988) (dissenting opinion).

3
    Although Title II payments are made by a Government agency, not
directly by the parent, their ultimate source is the parent's earnings.
See Califano v. Boles, 443 U. S. 282, 283 (1979).  Moreover, not all court-
ordered support payments are made by the parent; under a mandatory
wage-assignment order, child support is deducted automatically from the
absent parent's wages (just as Title II deductions are).  See 42 U. S. C.
666(b) (1982 ed. Supp. V).

4
    The Secretary considers voluntary payments by an absent parent to be
"child support" within the meaning of the disregard provision.  53 Fed.
Reg. 21644 (1988).

5
    See id., at 21642.

6
    The majority's reliance on the fact that Part D "abounds with
references to `child support' in the context of compulsory support funds
from absent parents," ante, at 5, to limit the meaning of "child support"
in 602(a)(8)(A)(vi), appears to be inconsistent with the Secretary's own
interpretation of the disregard provision as including voluntary as well as
court-ordered payments.  See n. 4, supra.

7
    The $50 disregard, though it may seem to be a small sum, may be a
substantial part of a family's monthly income.  In Virginia, respond- ent's
State of residence, the maximum monthly AFDC payment for a family of three
is currently $265.  Brief for Respondents 1-2.  See 45 CFR 233.20(a)(2)
(1989); Virginia Code 63.1-110 (Supp. 1989).  An additional $50 would be a
19% increase in AFDC benefits.

8
    The Secretary relies on the legislative history of a 1975 provision
which allowed 40% of the first $50 of child support collected by the state
agency to be disregarded in determining the family's income level.  42 U.
S. C. 657(a)(1).  This provision, by its express terms, however, is
applicable only "during the 15 months beginning July 1, 1975."  In 1975,
the statutory obligation of AFDC applicants to assign support rights and
cooperate with enforcement efforts had just been established, see 42 U. S.
C. 602(a)(26), and Congress apparently believed that a temporary incentive
provision would help to ensure compliance with these new requirements.
Such a rule, however, was never again proposed or enacted between 1975 and
1984.
    By 1984, the assignment and cooperation requirements were long-standing
conditions of AFDC eligibility.  Custodial parents who failed to assign
their support rights and cooperate in enforcement efforts would know that
they stood to lose their AFDC benefits.  The very different contexts in
which the 1974 and 1984 disregard statutes were enacted thus give an
additional reason for this Court's usual reluctance to infer the intent of
one Congress from the views expressed by another.  See Russello v. United
States, 464 U. S. 16, 26 (1983); Oscar Mayer & Co. v. Evans, 441 U. S. 750,
758 (1979).