SANDRA GARDEBRING, COMMISSIONER OF THE MINNESOTA DEPARTMENT OF
HUMAN SERVICES, PETITIONER V. KATHRYN JENKINS

   No. 86-978

   In the Supreme Court of the United States

   October Term, 1986

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Eighth Circuit

   Brief for the United States as Amicus Curiae

            TABLE OF CONTENTS
   Question presented
   Statement
   Discussion
   Conclusion
   Appendix

                          QUESTION PRESENTED

   Whether 45 C.F.R. 206.10(a)(2)(i) requires a state to provide
advance written notice to applicants for and recipients of benefits
under the Aid to Families with Dependent Children program concerning
the mechanics and effects of the so-called "lump-sum" rule of 42
U.S.C. 602(a)(17).

                               STATEMENT

   1. The Aid to Families with Dependent Children (AFDC) part of the
Social Security Act (Title IV, Part A of the Act, 42 U.S.C. (& Supp.
III) 601 et seq.) establishes a cooperative federal-state assistance
program.  Participating states provide financial support to needy
dependent children and the persons who care for them;  in return, the
federal government partially reimburses the states for the expenses
they thereby incur.  The AFDC program is designed to "encourag(e) the
care of dependent children in their own homes * * * and to help (those
children's) parents or relatives to attain or retain capability for
the maximum self-support and personal independence * * * " (42 U.S.C.
601).

   States participate in the AFDC program at their option and, at the
present time, all states have chosen to do so.  As a requirement of
participation, each state has formulated and administers an assistance
plan that conforms with the requirements of the statute and with the
implementing rules and regulations of the Secretary of Health and
Human Services (Secretary).  See 42 U.S.C. (Supp. III) 602(a);  see
generally 45 C.F.R. 201.0 et seq.  In conformity with these
requirements, each state has established a statwide standard of need,
"which is the amount deemed necessary by the State to maintain a
hypothetical family at a subsistence level." Shea v. Vialpando, 416
U.S. 251, 253 (1974).  Furthermore, each state has specified "how much
assistance will be given, that is, what 'level of benefits' will be
paid." Rosado v. Wyman, 397 U.S. 408 (1970).  And, in administering
its assistance plan, each state distinguishes between a family's
"resources" and its "income":  If the family's "resources" or "income"
in a given month exceeds state-specified limits (subject to federally
prescribed maximums), the state cannot provide the family with AFDC
benefits that month.  See 42 U.S.C. (Supp. III) 602(a)(7)(B), (17),
and (18);  45 C.F.R. 233.20(3)(i)(B).

   Prior to 1981, the states were required to treat all "income" or
"resources" received in one month as "resources" in succeeding months
-- until the money was spent.  See Lukhard v. Reed, No. 85-1358 (Apr.
22, 1987), slip op. 2 (plurality opinion).  This, however, had an
anomalous effect on any family that received a nonrecurring lump sum
payment (e.g., a retroactive social security payment, an inheritance,
a lottery winning, or a personal injury award).  The family had to
spend the lump sum receipt as quickly as possible or face potential
disqualification from AFDC benefits (because their "resources" might
exceed allowable limits).  See ibid.; see also S. Rep. 97-139, 97th
Cong., 1st Sess. 505 (1981).  Thus, although the statute was designed
to encourage AFDC families to budget their monies responsibily, its
treatment of lump sum receipts had the opposite effect.

   Accordingly, in 1981, the Secretary recommended that Congress amend
the statute's treatment of lump sum receipts.  Lukhard v. Reed, slip
op. 2.  Specifically, the Secretary proposed that the states be
required to prorate that part of a family's income which exceeds the
state's monthly standard of need over a period of months -- determined
by dividing all lump sum receipts and other countable income by the
applicable monthly need standard.  See ibid.  Congress concurred in
the Secretary's suggestion and, in August 1981, enacted the
Secretary's proposed "lump sum" rule (and other proposed changes in
the AFDC program) into law.  See Section 2304 of the Omnibus Budget
Reconciliation Act of 1981 (OBRA), Pub. L. No. 97-35, 95 Stat. 845 (42
U.S.C. (Supp. III) 602(a)(17)).  Congress provided that the new lump
sum rule would "become effective on October 1, 1981," unless the
Secretary determined that state law prohibited compliance with it, in
which case the rule would "become effective * * * the first month * *
* after October 1, 1981" (Section 2321(a) and (b), 95 Stat. 859-860).

   2. Petitioner, the Commissioner of the State of Minnesota's
Department of Public Welfare, /1/ then sent a letter, on September 18,
1981, to all current AFDC recipients in Minnesota informing them,
among other things, that the new lump sum rule had been enacted (Pet.
App. A97-A101).  This letter explained that the lump sum rule could
render families who received a lump sum temporarily ineligible for
AFDC benefits, that the new rule would become effective on October 1,
1981, and that AFDC caseworkers could provide additional information
concerning the rule's operation (id. at A97-A98).  /2/ Because of a
separate piece of litigation, however, petitioner did not actually
implement the new lump sum rule until February 1, 1982 (Pet. App. A4).

   Respondent, the representative of a class of AFDC recipients in
Minnesota who either had been or would be found ineligible for AFDC
benefits because of the lump-sum rule, filed this action against
petitioner in July 1983 (Pet. App. A5).  Respondent alleged that the
new "lump sum" rule violated the Social Security Act and the equal
protection and due process guarantees of the Constitution and, in
addition, that petitioner had not provided the plaintiff class with
adequate advance notice of the lump sum rule's mechanics and operation
(ibid.).  Petitioner responded by, among other things, filing a
third-party complaint against the Secretary, demanding that the
federal government bear a proportionate share of any liability
incurred in the implementation of the lump sum rule (id. at A5, A7).

   The district court certified the plaintiff class and granted
partial summary judgment to it (Pet. App. A5-A8, A27-A59, A61-A77,
A79-A81, A83-A94).  The court rejected the plaintiff class's claim
that the lump sum rule is inconsistent with the Social Security Act or
the Equal Protection and Due Process Clauses (id. at A5-A6, A40-A47,
A51-A57).  But it agreed with the plaintiff class (id. at A47-A51)
that, in implementing the lump sum rule, petitioner had failed to
provide the notice required by 45 C.F.R. 206.10(a)(2)(i).  /3/ The
court found that petitioner "does not advise AFDC applicants of the
lump sum rule at the time they apply for benefits," that the "only
information provided by (petitioner) to Minnesota AFDC recipients
regarding the lump sum policy (was the) * * * September 18, 1981
(letter)," that this letter "fell short of the requirement (of 45
C.F.R. 206.10(a)(2)(i)) that applicants are to be advised of
'conditions of eligibility,'" that "(n)o class member who applied for
AFDC after September 18, 1981 has received any written notice of the
lump sum policy," and that "recipients are sometimes not advised of
the lump sum rule until (petitioner) sends them a termination of
benefits notice" (Pet. App. A48).  The court found that the "lack of
advance notice makes it essentially impossible for the majority of
AFDC recipients to budget their lump sums according to the rigid
formula imposed by (petitioner)" (ibid.).

   As a remedy, the court ordered petitioner to prepare a "thorough
explanation of the mechanics of the (lump sum) rule(,)" to mail that
explanation to "all current AFDC recipients," and to "include such an
explanation (both) in the information which it provides to all
individuals who apply for AFDC benefits" and "in the material that is
given to recipients at the time of their periodic six-month
reevaluation for benefits" (Pet. App. A57).  In addition, the court
ordered petitioner to notify those recipients who had had their
benefits terminated (because of the lump sum rule) that the
terminations may have been improper and that, under state law, they
could reapply for benefits (ibid.).  But it refused to enjoin
petitioner from seeking to recover, by way of a reduction in future
payments, AFDC benefits that were paid to respondent during the
pendency of her challenge to the lump sum rule, /4/ finding that the
Eleventh Amendment barred such relief (id. at A89-A90).

   3. On appeal by both petitioner and respondent, /5/ a divided panel
of the court of appeals affirmed in part and reversed in part (Pet.
App. A1-A25).  The court agreed with the district court (id. at
A8-A16) that petitioner had failed to comply with the requirements of
45 C.F.R. 206.10(a)(2)(i).  But it disagreed with the district court's
refusal to enjoin petitioner from seeking to recoup the overpayments
made to respondent (Pet. App. A18-A22).

   a. On the notice issue, the court of appeals first rejected
petitioner's argument that the requirements of 45 C.F.R.
206.10(a)(2)(i) are satisfied by "informing an AFDC recipient of the
lump-sum rule and its operation when the recipient reports receiving
or appears likely to receive a lump sum" (Pet. App. A9).  The court
noted that "(t)he regulation on its face contemplates that in
appropriate cases oral notice will be given as a supplement to written
notice, not that it represents an alternative to written notice"
(ibid.).  Moreover, the court said, "(e)ven (if it were) true that
oral notice may replace written notice in appropriate cases, * * * the
oral notice provided by * * * (petitioner) cannot be considered
'appropriate' notice" (id. at A10).  The court reasoned that,
"(w)ithout advance notice, an AFDC beneficiary is unlikely to budget a
lump sum according to the new rule's rigid formula" (ibid.) and that
petitioner's "oral-notice policies do not reasonably assure that an
AFDC recipient who gets a lump sum will have advance notice of the
rule" (id. at A12).  On the latter point, the court noted that "it is
not always possible for the recipient or his or her caseworker to
anticipate the receipt of a lump sum" and that "(e)ven a highly
competent caseworker may wrongly determine that receipt of a lump sum
is not likely, forget to provide( ) notice of the rule, or be tardy in
doing so" (ibid.).

   The court then rejected petitioner's argument that the September
18, 1981 letter satisfied the requirements of 45 C.F.R.
206.10(a)(2)(i) (Pet. App. A14-A16).  The court noted that "members of
the plaintiff class who were not on the welfare rolls when this letter
was sent out did not receive it or any other written notice of the
lump-sum rule" (id. at A14);  "(f)or these class members," the court
ruled, "it is clear without further inquiry that the (petitioner)
failed to fulfill his notice obligations under 45 C.F.R.
206.10(a)(2)(i)" (id. at A14-A15).  Moreover, as to "those class
members who were AFDC recipients when the letter was mailed," the
court found that "the letter was 'incomplete and confusing'" (id. at
A15), reasoning that "the letter did not adequately explain the
mechanics of the lump-sum rule and (its) inflexible operation"
(ibid.), and that, "because the letter was ultimately inaccurate in
reporting the rule's effectiveness date, it provided inadequate
notice" (id. at A16).

   Finally, the court rejected petitioner's argument that the district
court could not enjoin the recoupment of overpayments made to
respondent (Pet. App. A18-A22).  The court held that "(a)n injunction
against the (petitioner's) recoupment efforts would not run afoul of
(the Eleventh Amendment's) strictures, because (petitioner had)
already paid (respondent) the money at issue" and thus "(t)he remedy
would not be a retroactive award of damages against the State" (id. at
A19-A20).  The court further held that federal regulations requiring
the recovery of overpayments do not bar such an injunction, reasoning
that "the payments to (respondent) cannot be considered an
overpayment, because the (petitioner), having failed to provide
adequate notice to (respondent) of the lump-sum rule, cannot properly
invoke it against her";  "(b)y failing to comply with the notice
regulation," the court ruled, "(petitioner) failed to institute a
legal change in its eligibility rules" (id. at A21).

   b. Judge Fagg dissented (Pet. App. A23-A25).  He stressed that,
under the express terms of the congressional enactment, "the 1981
amendment to the lump-sum rule became effective in Minnesota on
February 1, 1982" (id. at A23) and that, "(c)onspicuously absent from
the (enactment) was any suggestion that(,) in addition to this
explicit effectiveness date(,) Congress intended to include the
implicit qualification that the implementation of the amendment hinged
decisively on the state providing applicants and recipients alike with
'appropriate' advance written notice of the amendment's pending
implementation" (id. at A24).  Judge Fagg found 45 C.F.R.
206.10(a)(2)(i) to be a "regulation * * * of general applicability"
that "was not adopted in direct response to the amendment" and that
"does not mandate that implementation of congressionally adopted
eligibility requirements be preceded by advance written notice" (Pet.
App. A24).  In his view, "the regulation simply requires the state to
publicize generally in written form, and orally as appropriate, the
AFDC program and its availability" (ibid.).

                              DISCUSSION

   The decision below seriously misconstrues the regulatory scheme
that the Secretary has established for informing AFDC applicants and
recipients of the program's eligibility requirements.  This Court
should not allow that erroneous decision to stand.

   1. Pursuant to the general rulemaking authority granted him by the
Social Security Act (42 U.S.C. (Supp. III) 1302), the Secretary has
established a tripartite scheme for disseminating information to
applicants and recipients about the AFDC program.  First, 45 C.F.R.
206.10(a)(2)(i) (emphasis added) provides that "(a)pplicants shall be
informed about the eligibility requirements and their rights and
obligations under the program";  under this regulation, state agencies
must provide applicants with "bulletins and pamphlets" that describe
the general eligibility conditions of the AFDC program and the
individual's duty to report the occurrence of events that may affect
the amount of benefits to which he or she is entitled.  /6/ Second, 45
C.F.R. 206.10(a)(2)(ii) (emphasis added) provides that "(p)rocedures
shall be adopted which are designed to assure that recipients make
timely and accurate reports of any change in circumstances which may
affect their eligibility or the amount of assistance";  under this
regulation, state agencies must make available procedures whereby
individuals who are receiving AFDC benefits can report events that
might affect their eligibility and seek counsel concerning the
significance of those events.  Finally, 45 C.F.R. 205.10(a)(4)
provides that, "(i)n cases of intended action to discontinue,
terminate, suspend or reduce assistance * * * , (t)he State or local
agency shall give timely and adequate notice," including "a written *
* * statement of what action the agency intends to take, the reasons
for the intended agency action, the specific regulations supporting
such action, (and an) explanation of the individual's right to request
an evidentiary hearing * * * ";  under this regulation, state agencies
must provide individualized notice and explanation to any person whose
benefits are to be denied, reduced, or terminated.  This tripartite
scheme ensures that AFDC applicants and recipients receive the minimum
amount of information deemed necessary (by the Secretary) for the fair
and efficient operation of the AFDC program.  See generally 43 Fed.
Reg. 6949, 6950 (1978).

   Petitioner appears, from her apparently uncontested description of
her Department's procedures, to have fully complied with the
requirements of the Secretary's tripartite information dissemination
scheme.  When an individual applies for AFDC benefits in Minnesota,
petitioner provides the applicant with pamphlets and information
packets that describe the individual's basic rights and obligations
under the AFDC program (Pet. 6).  Furthermore, while an individual is
receiving AFDC benefits in Minnesota, petitioner assigns that
individual to a caseworker (who can answer questions concerning events
that may affect the recipient's benefit eligibility) and instructs the
individual to report any change in circumstances to the caseworker
(ibid.);  indeed, petitioner periodically provides written materials
(such as the September 18, 1981 letter) to AFDC recipients in
Minnesota describing changes in the AFDC program and urging recipients
to contact their caseworkers for additional information about those
changes (ibid.).  Finally, whenever an applicant is to be denied
benefits or a recipient's benefits are to be reduced or terminated,
petitioner sends the individual written notice describing the change
and the reasons for it (id at 10 n.2).  The Secretary's information
dissemination regulations require nothing more of petitioner.

   2. The conclusion of the courts below -- that petitioner violated
45 C.F.R. 206.10(a)(2)(i) by failing to supply AFDC applicants and
recipients with advance written notice of the mechanics of the lump
sum rule and its method of operation (Pet. App. A8-A16, A47-A51) -- is
plainly wrong.  45 C.F.R. 206.10(a)(2)(i) does not even apply to AFDC
recipients;  it requires only that "(a)pplicants shall be informed
about the eligibility requirements and their rights and obligations
under the program" (emphasis added).  More importantly, 45 C.F.R.
206.10(a)(2)(i) does not require states to provide either applicants
or recipients with advance written notice of the mechanics and
operation of any AFDC program rule, including the lump sum rule.  As
Judge Fagg noted in dissent (Pet. App. A24), "(t)his regulation * * *
is of general applicability(,) * * * was not adopted in direct
response to the (lump sum) amendment, (and) does not mandate that
implementation of congressionally adopted eligibility requirements be
preceded by advance written notice." Rather, "the regulation simply
requires the state to publicize generally in written form, and orally
as appropriate, the AFDC program and its availability" (ibid.).  /7/

   Contrary to the assertion of the courts below (Pet. App. A10-A11,
A48-A51), interpreting the Secretary's regulation in accordance with
its plain terms does not undermine the ability of AFDC recipients to
budget their monies in conformity with the lump sum rule.  To begin
with, like all other citizens, AFDC applicants and recipients are
presumed to know the requirements of the law and their obligation to
comply with it -- certainly, there is no presumption to the contrary.
See Atkins v. Parker, 472 U.S. 115, 127-131 (1985).  In any event,
here, when they apply for AFDC benefits, individuals are informed in
writing that certain events (such as the receipt of additional money)
can affect their eligibility for benefits and therefore that they
should promptly report any change in circumstances to their respective
caseworkers.  The caseworkers can then inform the recipients whether
and how the particular change in circumstance (such as the receipt of
a lump sum) affects the recipients' benefit eligibility.  AFDC
recipients who follow these instructions are clearly capable of
budgeting their monies in the manner intended by the lump sum rule;
stated differently, the only AFDC recipients who will be unable to
budget their monies in the manner intended by the lump sum rule will
be those who ignore the instruction that they promptly report any
change in circumstance to their caseworker so that the caseworker can
explain the effect of that change in circumstance to them.

   To be sure, as the courts below noted (Pet. App. A10, A12-A13,
A48-A51), some AFDC recipients may fail to inform themselves about the
requirements of the law;  others may fail timely to report the receipt
of lump sums;  and others may deal with caseworkers who fail
accurately to inform them of the existence or effect of the lump sum
rule.  These are unfortunate cases and, where allowed by statute (see
42 U.S.C. (Supp. III) 602(a)(17)), a state may recalculate the
ineligibility period for such persons.  As a legal matter, however,
these individuals are still presumed to know the requirements of the
law and to be able to budget their receipts in conformity with those
requirements.  See Atkins v. Parker, 472 U.S. 115, 127-131 (1985)
(welfare recipients are presumed to know the requirements of the law);
 Heckler v. Community Health Services, 467 U.S. 51, 63-66 (1984) (the
government cannot be estopped by its agents' failure accurately to
advise persons of a law's existence or effect);  Schweiker v. Hansen,
450 U.S. 785, 789-790 (1981) (per curiam) (same).  And, as a practical
matter, the Secretary has determined that information is most
effectively conveyed by face-to-face communications between program
participants and caseworkers and that, except for general information
requirements, the cost of advance written notices concerning the
operation and effects of particular AFDC rules is too high to justify
requiring all states to send them.  This judgment -- as to how
information is best disseminated and as to what information his
regulations require to be disseminated -- is entitled to deference
from the courts.  See Lukhard v. Reed, slip op. 9, 12;  Lyng v. Payne,
No. 84-1948 (June 17, 1986), slip op. 12-13;  Blum v. Bacon, 457 U.S.
132, 141-142, 145-146 (1982).  The decision below errs in failing to
accord that deference.  /8/

   3. The Secretary's judgment that his regulation should not be
interpreted to require advance written notice of changes in AFDC
program rules that affect eligibility (such as the lump sum rule) is
an eminently reasonable one.  The cost of complying with such a
regulation would be very substantial:  Congress and the Secretary are
continuously adjusting the myriad requirements that affect eligibility
in the AFDC program;  the states would therefore be required to expend
sizeable sums on printing and mailing letters concerning such changes
to AFDC program recipients.  Such diversions of the finite funds
available for the program from benefit payments to administrative
costs must be avoided where possible.  Moreover, while the states may
find it desirable and appropriate in special circumstances to provide
such written notice (in addition to carrying out the ordinary
information dissemination requirements), the benefit to welfare
recipients of doing so in all circumstances is questionable:  even if
large numbers of recipients would be affected by a particular change
in program conditions, which is usually not the case, flooding
recipients with notices about every program change will discourage
them from reading any of the notices to determine whether any
particular change affects them.  Rather, recipients will be more
likely to rely on their caseworkers to inform them of how their
eligibility for benefits has been affected by any particular change in
circumstance, which is exactly why the Secretary has not required
states to expend their limited funds on expensive mailing programs.
The contrary judgment of the court below is wasteful and, to the
Secretary's mind, based on unrealistic assumptions about the benefits
of such mailing programs.

   4. The regulation in issue also applies to the Old-Age Assistance
(42 U.S.C. (& Supp. III) 301 et seq.), Aid to the Blind (42 U.S.C. (&
Supp. III) 1201 et seq.), Aid to the Permanently Disabled (42 U.S.C.
(& Supp. III) 1351 et seq.), and Supplemental Security Income for the
Aged, Blind, and Disabled (42 U.S.C. 1381 note) programs.  Thus, the
rationale of the decision below, if fully applied by that court or
other courts, could cause widespread disruption of the administration
of federal welfare programs.  This Court's review is therefore
warranted.  /9/

                              CONCLUSION

   The petition for a writ of certiorari should be granted.  The Court
may wish to consider summary disposition.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   LAWRENCE G. WALLACE

      Deputy Solicitor General

   GLEN D. NAGER

      Assistant to the Solicitor General

   JOHN F. CORDES

   ROBERT K. RASMUSSEN

      Attorneys

   RONALD E. ROBERTSON

      General Counsel Department of Health and Human Services

   MAY 1987

   /1/ At the time, Leonard Levine was the Commissioner of the
Minnesota Department of Public Welfare.  Petitioner Sandra Gardebring
is Mr. Levine's successor in office.

   /2/ The letter explained (Pet. App. A97-A98) that, "(w)hen a family
receives lump sum money such as an inheritance, a Social Security back
payment, insurance settlement, gift, etc., the money will be deducted
from the AFDC grant, whether or not it has already been spent.  If the
lump-sum added to other family income totals more than the AFDC
maximum for that size family, the family will be ineligible for the
month in which the lump sum was received (and possibly for a number of
following months), whether or not the money is spent before the period
of ineligibility has gone by.  If the family already received an AFDC
grant that month, the grant would be 'recouped' by the welfare
agency."

   The letter further stated (Pet. App. A97 (emphasis omitted)) that,
"(t)his letter is not intended as a detailed explanation of all the
changes;  you must get that from your financial worker.  There may be
some changes which affect you which either are not mentioned at all or
are mentioned only in general terms.  You will receive a formal,
written notice from your county welfare agency if and before any
adverse action is taken;  your right to appeal will be explained on
that notice."

   /3/ 45 C.F.R. 206.10(a)(2)(i) states that:  "Applicants shall be
informed about the eligibility requirements and their rights and
obligations under the program.  Under this requirement individuals are
given information in written form, and orally as appropriate, about
coverage, conditions of eligibility, scope of the program, and related
services available, and the rights and responsibilities of applicants
for and recipients of assistance.  Specifically developed bulletins or
pamphlets explaining the rules regarding eligibility and appeals in
simple, understandable terms are publicized and available in
quantity."

   /4/ Respondent had been found eligible for AFDC benefits in
November 1982 (Pet. App. A88).  On October 31, 1983, however, her
husband received a disability payment of more than $5,000, which the
family immediately spent (ibid.).  Respondent reported the lump sum
receipt to her caseworker, who informed her that the lump sum receipt
rendered her family ineligible for AFDC benefits for six months
(ibid.).  While respondent pursued her administrative appeals,
petitioner continued to pay AFDC benefits to her (ibid.).  After
respondent's appeals were rejected, petitioner proposed to withhold
one percent of her future monthly AFDC benefits until the overpayment
was recovered (id. at A89).

   /5/ The Secretary initially appealed the portion of the district
court's order requiring him to pay the federal share of any benefits
payable to the class, but subsequently withdrew that appeal (Pet. App.
A7 & n.8).

   /6/ 45 C.F.R. 206.10(a)(2)(i) provides that "(u)nder this
requirement(,) individuals are given information in written form, and
orally as appropriate, about coverage, conditions of eligibility,
scope of the program, and related services available, and the rights
and responsibilities of applicants for and recipients of assistance";
the state must ensure that "(s)pecifically developed bulletins or
pamphlets explaining the rules regarding eligibility and appeals in
simple, understandable terms are publicized and available in
quantity." 45 C.F.R. 206.10(a)(2)(iii) further provides that "(a)ll
applicants for and recipients of assistance shall be notified in
writing at the time of application and on redetermination that
eligibility and income information will be regularly requested from
agencies * * * and will be used to aid in determining their
eligibility for assistance."

   /7/ The court below suggested (Pet. App. A10 n.10) that, in answers
to interrogatories in the district court, the Secretary had
interpreted 45 C.F.R. 206.10(a)(2)(i) to require advance written
notice to AFDC recipients of the lump sum rule's operation and effect.
 The court plainly misread the Secretary's answers, which we have
reprinted in the appendix to this brief.  The Secretary expressly
stated that "(a) State has considerable latitude in the development of
procedures it shall adopt to ensure effective administration of the
AFDC program" and that "(p)rovisions at 45 CFR Section 206.10(a)(2)(i)
do not require a State to publicize the lump sum rule * * * " (App.,
infra, 6a (emphasis added)).  Thus, while he advised (id. at 4a
(emphasis added)) that "45 CFR Section 206.10(a)(2)(i) and (ii)
require a State agency to inform AFDC applicants and recipients about
eligibility requirements * * * (,)" including "generally advising
applicants and recipients of their obligation to report receipt of
lump sum income, the operation of the lump sum rule, and (its) effect
on eligibility for assistance," the Secretary also stated (ibid.
(emphasis added)) that it is "not until a State takes action to
terminate, discontinue, suspend or reduce assistance (that it is) * *
* required to give timely and adequate written notice of the specific
adverse action" and the reason for it.

   /8/ The court below erred in suggesting (Pet. App. A13-A14) that
deference was inappropriate both because the Secretary had explained
his regulations in the context of litigation and because that
explanation "conflicts with the plain language of the rule, and would
deprive the rule of much of its significance in this context." The
Secretary's interpretation of his own regulation is entitled to
deference, whether it is articulated in the course of litigation or
not.  See Lukhard v. Reed, slip op. 9, 12;  United States v. Morton,
467 U.S. 822, 835-836 n.21 (1984).  Moreover, as discussed in text,
the Secretary's interpretation is consistent with the language of the
regulation and gives equal significance to the regulation in the
context of the lump sum rule as in any other context.

   /9/ Because the court of appeals' initial premise -- that 45 C.F.R.
206.10(a)(2)(i) requires advance written notice to AFDC recipients of
the mechanics and operation of the lump sum rule -- is so plainly
wrong, we do not address the questions (a) whether the September 18,
1981 letter constituted adequate advance written notice and (b)
whether petitioner could nonetheless recover the overpayments made to
respondent by way of a reduction in her future benefits.

   APPENDIX