QUERN v. MANDLEY

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Argument of George W. Lindberg

Chief Justice Warren E. Burger: We will hear arguments next in 1159, Quern against Mandley, and 1416, Califano against Mandley.

Mr. Lindberg, you may proceed whenever you are ready.

Mr. George W. Lindberg: Mr. Chief Justice and may it please the Court.

I represent the Illinois State, defendants in this cause and I intend to argue for approximately 15 minutes.

I will argue the position that Illinois can maintain a Special Assistance Program for Emergency Needs under its regular AFDC Special Needs Program.

Mr. Keith Jones, the Deputy Solicitor General, represents the Secretary of Health, Education and Welfare also a defendant in this case.

He will argue the balance of the time and specifically address the subjects of the basic statutory scheme underlying the AFDC and Emergency Assistance Programs.

He will distinguish the two programs, one from the other and he will argue why the Social Security Act does not impose mandatory eligibility requirements on the state in that regard and he will establish why after, the first Mandley decision in this case, the first Mandley decision, the case became moot.

This case arose when the plaintiffs filed a complaint alleging that the Illinois Emergency Assistance Program violated Section 606 (e) of the Social Security Act under which Illinois operated the program.

The Illinois Plan for Emergency Assistance covered essentially four kinds of emergency needs for AFDC eligible individuals.

Homelessness due to damage of the structure, homelessness due to partial damage of the structure, and the court ordered evictions, except for the non payment of rent and there was a provision for ADC applicants who had not yet obtained eligibility or have been established eligible that they could have food, clothing, household goods, and equipment.

The plaintiffs’ allegations in attacking the plan allege that the Illinois Emergency Assistance Program, as then operated, did not address the emergency needs of all destitute children.

The plaintiffs in the case, the individuals were persons who had applied for and had been denied emergency assistance in that their particular need was not one of those met by the criterion that I mentioned a few moments ago.

These attacks were all principally made in Count 1 of the complaint.

Count 2 then went on to address allegations that the Illinois Plan violated the Fourteenth Amendment of the Constitution, the Equal Protection Clause because it did not provide emergency assistance to all persons facing destitution.

The District Court had found for the State defendants and for the Secretary of Health, Education and Welfare, that is, it did not find a violation of the Supremacy Clause and it did in fact find that the Illinois Plan created under 606 (e) did not violate 606 (e) of the Social Security Act.

The plaintiffs appealed to the Seventh Circuit Court of Appeals which reversed the District Court and found that the Illinois Plan more narrowly defined eligibility than is permitted in the court’s opinion under 606 (e) of the Social security Act.

This has been referred to as the Mandley I decision because there was a second appeal which I will address in a moment.

The case was remanded to the District Court for further proceedings consistent with the court’s holding.

The defendants then made a motion to dismiss the case as moot for the reason that the State of Illinois had withdrawn its Emergency Assistance Program under Section 606 (e), and instead, opted to operate an Emergency Needs Program under the regular AFDC Special Needs Program.

The plaintiffs’ answer to that motion said that Illinois was continuing to operate its Emergency Assistance Program and not under Section 606 (e), but under Section 402 and of course, it is correct that Illinois was operating a program of emergency assistance under its ADC Provisions.

The District Court offered the plaintiff ample opportunity to amend its complaint and address the new program under Section 402 of the Social Security Act.

The plaintiffs refused to amend its complaint and some months later the District Court granted the defendants’ motion and dismissed the case as moot.

The plaintiffs again appealed to the Seventh Circuit and the Court of Appeals, again having a second opportunity at this case, concluded that the District Court erred, the case was not moot and most importantly, the Seventh Circuit Court of Appeals found that 606 (e) is now the exclusive statutory channel to receive federal reimbursement for the operation of an Emergency Assistance Program.

Again, the decision was sent to the District Court and the court entered an order that was offered.

The state and the Secretary filed a petition for writ of certiorari, which was granted.

The results of the Seventh Circuit holding in Mandley II is that states now can only look to Section 606 (e) of the Social Security Act to operate an Emergency Assistance Program for needy children.

It is the position of the State of Illinois that there is no support anywhere in the Act, in the legislative history, in the administrative interpretation of the decisions of the Act or the decisions of this court that support the holding of the Seventh Circuit, and in fact what is available, suggests just the opposite conclusion.

That 606 is not the exclusive mechanism for the operation of emergency systems program.

The Social Security Act establishes the basic framework of supporting the operation of the AFDC Program by the states and the regulations of the Secretary, perhaps as far back as 1949, recognized and authorized a Special Needs Program under the conventional AFDC Program operated by the states.

Specifically, I would draw the Court’s attention to Section 23-233.20 of the Code of Federal Regulations, if you will look in the yellow copy which is the original brief of the state petitioners on A9, you will see the language quoting, this is 233.20a25, if the state agency includes special need items in its standard, parenthetical A describes that they will be recognized in the circumstances under which they will be included and provide that they will be considered and need determination for all applicants and recipients requiring them.

Now, this is the Secretary’s acknowledgment that special need items are permissible under the regular AFDC Program and it is the position of the State of Illinois that for many years, emergency needs, non-reoccurring needs of AFDC recipients have been in fact met under that provision, special needs and it has been of course as I have indicated, recognized by the Secretary.

Justice Potter Stewart: Mr. Lindberg, is there any further definition of special need items in the regulations or anywhere else?

It is only a historic understanding upon which you are relying, as I understand it rather than -- special need items do not translate freely into emergency?

Mr. George W. Lindberg: No, are you referring to the statute or the Secretary?

Justice Potter Stewart: I am asking you, is there anything anywhere defining special need items except the definition of historical experience?

Mr. George W. Lindberg: I believe that what you have said is correct in your question that it is a generally accepted, understood term of art in the field.

Justice Potter Stewart: To cover or at least to include, what is the emergency?

Mr. George W. Lindberg: Non-reoccurring needs.

Mr. Justice, it is most frequently referred to in connection with a state’s AFDC Program where the Secretary has recognized that there are special needs from time to time.

These are non-recurring.

These are in addition to the regular established monthly grants, for example, that a family may enjoy.

Justice Potter Stewart: Special need items do not freely translate into emergency assistance, does it?

Mr. George W. Lindberg: Only by use and application.

Justice Potter Stewart: And you say in your state of Illinois, the history has been that these payments do include the same payments that would have been provided under the other program.

Mr. George W. Lindberg: That is correct.

Justice Potter Stewart: Do you know any of the experience or history in other states?

Mr. George W. Lindberg: Yes, I understand that there are 27 states that have special need items attached to their AFDC Programs and I am also to understand that five or slightly more of those states do meet emergency needs under their special needs item under their AFDC Program.

Justice John Paul Stevens: Mr. Lindberg, can I just be sure I am following this.

You called our attention to 233.20.

That is the regulation that relates to the emergency program, is it not?

Mr. George W. Lindberg: Yes, that is correct, special need items.

Justice John Paul Stevens: That is AFDC.

Mr. George W. Lindberg: Yes.

Justice John Paul Stevens: That is the AFDC rather than the emergency?

Mr. George W. Lindberg: Yes.

Justice John Paul Stevens: So that your point is that it did expressly authorize emergency assistance?

Mr. George W. Lindberg: My point is that there is a Secretary’s regulation indicating that it is legal, regular, authorized for an AFDC Program to have a special needs provision.

The next step then, I presume, is Justice Stewart’s question is does special needs include emergency assistance too and of course our position is that it does because there was nothing in the 1968 amendment which gave rise to 606 (e) as a new program to include a new class of people whose emergency needs could be met immediately.

There was nothing in that language that rejected what the Secretary had been doing and approving all these years of what other states have been doing.

I cite that Section only to indicate that special needs are recognized by the Secretary.

Justice John Paul Stevens: Perhaps I am repeating what Justice Stewart asked, but I want to be sure I follow, the question that I was not sure of is, how much of the states had previously been doing, although it was special, could properly be classified as emergency and how do we know how much there was of that character?

Mr. George W. Lindberg: I am afraid we do not know.

Justice John Paul Stevens: The record really does not tell us?

Mr. George W. Lindberg: No, we can indicate that there were man-made catastrophes and natural catastrophes.

Justice John Paul Stevens: I suppose the inference Mr. Justice Stewart may have been drawing is that since Congress sought that we needed another statute to deal with this problem, that perhaps it is reasonable to infer that it was not adequately dealt with before?

Mr. George W. Lindberg: Well, I think in part, that is a part of the rationale of Congress.

First of all, they were concerned that there are not needy children out there who have not already been prequalified for AFDC, but they have a need today, tonight.

So, they authorized this new program in 1968 saying regardless of the AFDC eligibility for one time a year, in other words, they have some fiscal concerns, once a year you can meet the needs of a needy child without worrying about whether he is AFDC qualified --

Justice Potter Stewart: For not longer than 30 days?

Mr. George W. Lindberg: Not longer than 30 days in one year --

Justice Potter Stewart: In any twelve-month period?

Mr. George W. Lindberg: -- and that was the objective of that provision.

Congress obviously wanted to go beyond what was already being done and we have no argument with that.

Our position is that both programs coexist.

Justice Potter Stewart: The question which has aroused my brother Stevens' interest as well as my own is whether or not special need items, which you tell us is nowhere defined, includes the very specific definition of emergency assistance appearing in 606 (e) (1) and reproduced on page A6 of the Appendix of your brief, the term “emergency assistance to needy families and children means any of the following: furnished for a period of not less than 30 days in any twelve-month period and so on, which is very, very specific and does, and does deal with emergencies which as I say, does not translate freely into special need items?

Mr. George W. Lindberg: Well, very honestly Mr. Justice, that is a difficulty.

We can search the statutes backward and forward, but we cannot find that type of support, nor is there any evidence to the contrary.

Chief Justice Warren E. Burger: Mr. Jones?

Argument of Keith Jones

Mr. Keith Jones: Mr. Chief Justice and may it please the Court.

The Solicitor General authorized the filing of a petition for writ of certiorari in this case on behalf of the Secretary of Health, Education and Welfare because it was believed that the decisions below are counterproductive in terms of the legislative purpose of encouraging emergency assistance and also in terms of the interest of the very welfare recipients that the Court of Appeals thought it was assisting.

The legal implications of the decision below are that the federal government may no longer reimburse state payments of AFDC Emergency Assistance.

Second, that states that wish to make federally reimbursable payments to AFDC recipients in order to alleviate the hardship that may result from emergencies, must do so not under an AFDC Plan, but under and EA Plan.

Third, all state EA Plans, whether newly created or preexisting, must afford relief to all needy families with children.

You cannot just carve out certain groups who would be eligible.

They must provide need not in just certain enumerated emergencies, but in all circumstances entailing the risk of destitution.

The foreseeable practical consequence and implication of this decision, we believe, would be that many states that now provide EA or AFDC Emergency Assistance would be required to simply abandon emergency relief all together because they simply could not afford the extensive program devised by the Court of Appeals.

In our view, this disruption of state welfare plans and policies is not required by the Social Security Act.

The burden of my argument here is that decisions below rest upon a misreading of the scope of the AFDC and EA Programs under that Act.

I will begin with the AFDC Program which is by far the larger and more important of these two programs.

Under AFDC, the federal government reimburses a portion of state payments of eight families with dependent children.

Section 406 (a) and (b) of the Act define a dependent child roughly as a needy child who has been deprived of parental support and care as a result of the death, absence, or disability of a parent.

In order to qualify for federal reimbursement for AFDC payments, the state must submit a plan to the Secretary that satisfies the requirements of Section 402 (a) of the Act.

If the Secretary approves the plan, the state payments are reimbursed according to the formula set forth in Section 403 (a) (1) of the Act under which, as a practical matter, the federal reimbursement ranges from 50% to 65%.

Alternatively, in some cases, the state may elect to have reimbursement determined under Section 1905 of the Act and under that provision, federal reimbursement will range from 50% to a maximum of 83%.

The normal mode of assistance contemplated by AFDC is regular monthly payments based upon continuing need, but the Secretary consistently, and from the beginning and from before the enactment of the EA Program, has approved state plans that provide for supplemental payments to meet special non recurring needs.

At least some states have included within their AFDC Plans, have included within the non recurring items, emergency needs arising from, for example natural or man-made disaster.

Now unfortunately, as has been pointed out, in part because of the manner in which this litigation has proceeded, the record is not satisfactory with respect to prior administrative practice.

The Secretary has never formally defined the special need items for which, since 1949 and not before, the state has been entitled to reimbursement.

In an answer to your question Mr. Justice Stewart, it is clear that the states have included emergency items within their state AFDC Plans.

The booklet which I hold here and to which the respondents have referred in their brief --

Chief Justice Warren E. Burger: When you say “states have,” do you mean all the states have?

Mr. Keith Jones: Not all states.

Some states do not include special needs at all.

Some states have no provision for special needs.

Chief Justice Warren E. Burger: Your colleague says there are probably 27 states, is that the figure that apply --?

Mr. Keith Jones: I think that is not accurate.

I think that a total of 45 jurisdictions that includes not only states but certain territories, includes some kind of special need item in their AFDC Plan.

Unfortunately, although I would have thought at the outset of this litigation, we could have identified the precise count of the number of states that provide emergency assistance under their AFDC Plans.

The fact that state plans are not sufficiently specific to permit us to tell the Court exactly the number of states, but just to give the Court an idea, I will read to you from this booklet a description of two state plans which I have selected at random just here at the argument, “Michigan has a special circumstance item which is described as faultless, the provisions for medical transportation, access shelter when required to preserve equity in home or because of family size or other unusual circumstances,” and that is all it says and I cannot determine from that whether it covers the kinds of emergencies with which we are concerned here.

Let me read to you another one in the State of New York.

It covers provisions for supplies for college or training school, attendant care, camp fees, life insurance premium, home delivered meals, replacement of clothing lost in fire, flood, or other catastrophe, purchase of essential furniture required for establishment of a home, repair of essential heating equipment, cooking stoves and refrigerators and I will skip some of the items, restaurant allowance, temporary shelter and hotel, and allowance to meet increased needs of pregnant mother.

There are variety of special needs there, but it is clear that some of them include emergency needs that arise from fire or other catastrophes.

Justice Potter Stewart: I suppose the best test of the administrative interpretation of special need items is its, as you are standing here on behalf of the agency and I guess that they do include what Illinois is now doing?

Mr. Keith Jones: There is more in the record.

Actually, there is very little, if anything, in the record in this case which establishes prior administrative practice.

Perhaps, one reason of why there has been little emphasis on these special items in the past is that since AFDC provides for regular monthly payments, in many cases emergency needs can be promptly translated into a decrease in assets or an increase in expenses, and therefore, reflected in the changing calculus of monthly benefits.

Now for that or for some other reason, it is true that the Secretary’s construction of the Act has not been widely publicized, but there can be no doubt that the AFDC Program in fact has been construed as permitting reimbursement of AFDC emergency benefits.

Justice John Paul Stevens: Mr. Jones, could I ask you a question that you can cover as you go along, just looking at it rather broadly, if the EA Program allows 50% reimbursement and the AFDC Program allows a larger percentage of reimbursement, and if the state could be covered under either program, why would it ever elect to be under the EA program?

Mr. Keith Jones: That is correct, Mr. Justice Stevens.

Justice John Paul Stevens: Illinois does give to broader category?

Mr. Keith Jones: Well, that is right and I think, frankly, one of the mysteries in this case is why Illinois ever chose to have an EA Program rather than an AFDC Emergency Program.

Justice John Paul Stevens: Unless it thought that was the only legitimate source of funds?

Mr. Keith Jones: Well, there are some minor differences between the two programs that I will reach in a moment and I have no independent knowledge of whether those differences affected the state’s decision.

It may be that the state was ill-advised.

On the other hand, I should point out that the State of Illinois, at the present, is at the 50% level in its AFDC reimbursement.

The formula under which federal reimbursement is calculated depends upon a ratio, in part at least, on the ratio of per capita income in state, per capita income in the nation.

Right now, that works out so that Illinois receives the minimum reimbursement under the statute.

So for Illinois, in terms of the direct monitory reimbursement, there was probably no difference.

Justice John Paul Stevens: Was that true at the time of the program involved here too?

Mr. Keith Jones: I do not know, Mr. Justice Stevens.

I know that since 1975 it has been the case.

At any rate, our submission is that the remedial purpose of the AFDC legislation and its broad language compels the conclusion that the Secretary is authorized to reimburse the states for their emergency payments under that program.

Now whereas the AFDC Program is designed to meet the needs of a statutorily defined families with dependent children, that is, of one parent or of no-parent families, the EA Program is designed to afford short-term assistance to a much broader category of families without regard to the requirement of dependency that is the lynch pin of the AFDC Program.

As is the case with AFDC, a state must submit to the Secretary, an EA Plan, that satisfies the applicable requirements of Section 402 (a) of the Act in order to qualify for federal reimbursement.

Some of the requirements of Section 402 (a) do not apply to the EA Plans however and in particular, the requirement in Section 402 (a) (10), that benefits be paid to all persons who satisfy the federal definition of eligibility, by its terms applies only to the AFDC Plans and not to EA Plans.

Instead, the Secretary has indicated, by regulation, that the states may set their own EA eligibility conditions and they specify the particular emergency needs that their EA Plans will meet.

Now, a major difference between EA and AFDC, as we have already discussed, is the difference in the applicable formulas that determine the federal reimbursement.

EA has always have 50%, whereas, depending upon the formulas that apply, AFDC reimbursement may be from 50-83%.

In this connection, I would like to point out a correction that we had made in our brief.

In footnote 16 at page 27 of our brief, we had indicated that in some circumstances, the formula for determining EA and AFDC reimbursement may be the same.

That statement is incorrect.

We pointed out in a letter to the clerk last August, which I understand has been distributed to the Court, that different formulas always will apply to these two programs.

Now, there are other significant --

Justice Potter Stewart: Some other little typo or something in your brief to us?

Justice Potter Stewart: That is correct.

That is right, Mr. Justice Stewart.

Now, there are other differences between AFDC and EA Program in addition to those relating to the counts of families who are potentially eligible and the rate of federal reimbursement.

One of these has already been alluded to, whereas, AFDC assistance may be continuous and emergency needs may be met whenever they arise, EA assistance is available only, as the statute says, for a period not in excess of 30 days in any twelve-month period.

In other words, under EA, a family is limited to one emergency per year and there is no similar limitation under the AFDC Program.

There are other differences, as we point out in our brief at pages 23-27, relating to work requirements, age limitations, living arrangements within the family, and family income.

With this statutory background in mind, it is somewhat easier to understand the inception and follow the progress of this lawsuit.

In 1973, as has been indicated, the State of Illinois adapted an EA Plan and the Secretary approved it.

The EA Plan covered only AFDC beneficiaries and provided benefits in certain enumerated circumstances.

As I have indicated, it is not entirely clear why the state chose to provide EA coverage since it could have simply amended its AFDC Plan to cover the same beneficiaries.

Nevertheless, the state did adapt an EA program and this litigation resulted.

The respondents have challenged that EA Program on two related grounds.

First, they claim that the state's plan is to narrow it.

It should be extended to all needy families with children.

Second, they contend the state should provide assistance whenever necessary to avoid destitution and not just in certain enumerated emergencies.

Our position, in essence, is that these contentions fail to make out a cause of action.

The respondents have not been unable to point to a source of positive law that entitles them to the extended EA coverage which they seek.

Their claim is that Section 406 (e), which defines emergency assistance to needy families with children, constitutes a federal definition of EA eligibility and that Section 402 (a) (10) of the Act makes that definition mandatory upon the states.

Section 406 (e), the definition, does not purport to establish eligibility.

It does no more than define the outer perimeter within which the Secretary may make reimbursement.

Now in doing so, Section 406 (e) does define, in a general way, a class of potentially eligible EA recipients.

But, Section 402 (a) (10) does not require a participating state to make EA payments to anyone who is eligible to receive them.

As the Court of Appeals recognized, and as the parties here now apparently agree, 402 (a) (10) by its terms is limited to just the AFDC Plans, not to EA Plans. Accordingly, in so far as it rests upon the statute at all, respondent’s argument boils down to an inference from Section 402 (a) (10) that Congress intended to impose mandatory eligibility standards upon state, EA Programs as well as upon state AFDC Programs.

This argument has, we believe, three separate and independently conclusive answers.

First, the logical inference to be drawn from the statutory text is just opposite to that that the respondents would draw.

Since Congress explicitly made 402 (a) (10) applicable only to the AFDC Program, it must be inferred that Congress intended that that provision would not apply to the EA Program.

Secondly, the respondents’ argument in this case is inconsistent with this Court’s reasoning in New York Department of Social Services against Dublino.

In that case, the Court determined that in the absence of a clear manifestation of congressional intention, Section 402 (a) of this Act, this very Section, would not be read as restraining the considerable latitude that the states must be allowed in setting their own welfare policies.

Here, there is no such clear manifestation of legislative intent and the respondents’ argument, by implication, does not remedy that deficiency.

Third, the task of interpreting and applying the statute has been delegated in the first instance to the Secretary and the Secretary has construed the Act as granting the states leeway to set their own EA eligibility standards and that construction should be accorded deference in the absence of compelling legislative history to the contrary and there is none here.

In this regard, I would like to dispel any confusion that may have been created by the respondents’ claim that the Secretary’s regulations have been superseded.

Secondly, respondents in their brief contend that the so called Townsend regulations, which the Secretary adapted in the wake of this Court’s decisions in King against Smith, Townsend against Swank, and Carleson against Remillard, supersede the specific EA regulations.

But, the Townsend regulations do no more than acknowledge the Townsend line of decisions which were that 402 (a) (10) imposes mandatory federal eligibility requirements on AFDC Programs.

All the regulations do is say in effect, that the states must abide by the requirements of the statute.

The regulations do not go further and attempt to define those requirements.

In particular, they do not purport to require the states to abide by mandatory federal EA eligibility requirement.

Accordingly, the Townsend regulations have not superseded the Secretary’s more specific regulations relating to the EA Program.

For all of these reasons, we submit that the Court of Appeals erred in its first decision in this case.

The states participating in the EA Program are not required to pay benefits to every needy family with children in every circumstance presenting the risk of destitution.

Instead, they may set their own reasonable eligibility standards and limit relief to those circumstances as emergency needs that they deem most compelling.

Justice Potter Stewart: That was the Court of Appeals’ first decision which is the Mandley --

Mr. Keith Jones: That is correct, that is the so-called Mandley I decision.

We believe all Illinois attempted to do here was to set reasonable eligibility standards and limit relief and tailor relief to those circumstances that met its own local needs.

In any event, once the state ended the EA Program that was the subject of this lawsuit, the case was moot.

It makes no difference that the state then amended its AFDC Plan which it could have done from the outset to cover special emergency needs.

As I have explained at some length --

Justice John Paul Stevens: Mr. Jones, is it truly moot because if we should buy your argument that you made thus far and let the state know that it has the option to reinstate an EA Plan, is it not something that might be likely to reoccur?

If the law were clarified in their favor, is it not a very realistic possibility that they would say “we will reinstate our old plan”?

Mr. Keith Jones: That may be very well be.

One of the ironies of my situation is that if I convince you, as I think is correct, that there are substantial differences between these two programs and you determine that once the state shifted to AFDC, the particular complaint that the respondents made was moot, then there would be no occasion for you to reach the underlying issue that the lawsuit originally involved.

Justice Potter Stewart: That is what I was going to ask you.

How many of these issues do we need o take on?

It will be misleading and inconsistent.

Mr. Keith Jones: Well, I had it rest that in reverse order, Mr. Justice Stewart.

I think that, as a practical matter, let me forget about practicality, as a jurisprudential matter, I would assume that you would first determine whether according to the allegations of the state and the Secretary in the District Court this time around, the lawsuit had become moot.

If it had become moot, then there would be no occasion for you to address --

Justice Potter Stewart: That is the end of it, is it not?

Mr. Keith Jones: That is the end of it and all of my efforts with regard to the rest of the case would have been wasted.

But as I say, as a jurisprudential matter, the first issue that is before the Court is that of mootness.

For that reason, Mr. Justice Stevens, although had you given an opinion with regard to the scope of the EA Program, the state might have been able to take advantage of it and the litigation could have resumed.

Justice John Paul Stevens: Mr. Jones, under the normal test, if the litigation is the real life controversy when the complainant is filed and when the District Court first decides the merits.

Then the defendant abandons its what is held to an illegal activity and resorts to some other program, that normally does not moot a case, does it, as long as the defendant can go back to what he started with under a WT Grant in cases like that?

Is that not exactly what we have got here?

Mr. Keith Jones: The Court would have to evaluate the likelihood that the state would recur to the behavior that caused the lawsuit to be shaped in the first place.

Justice Potter Stewart: That case has involved a violator from the idea was that after somebody has voluntary ceased activity and a claim was made, there is no point in enjoining them, but this Court in that and other cases held that, yes, you can enjoin them because they might, sometime in the future want to continue their violations, but your claim here is that there was no violation, that we should decide that?

Justice John Paul Stevens: I think it is clear that even if there was a violation, it is moot.

Are you not arguing that?

Mr. Keith Jones: Well, there was a violation in the terms of the Court of Appeals on that order, that is correct.

Now, the question is whether a voluntary cessation of that alleged violation is likely to be temporary or permanent.

Justice John Paul Stevens: But it is not voluntary if it is undertaken in the face of a court order?

Mr. Keith Jones: No, the order did not require to an AFCD Program.

Justice John Paul Stevens: I know, but it found a violation.

Justice Potter Stewart: It does not complain to everybody.

Mr. Keith Jones: That would be the correct in the WT Grant situation as well.

Well, do not let me dissuade you from reaching the merits of this case.[Laughter]

Justice Thurgood Marshall: All on your own now, what do you want us to do, now on your own?

Mr. Keith Jones: Speaking for the Secretary of Health, Education and Welfare?

Justice Thurgood Marshall: Right.

Mr. Keith Jones: We would very much like the Court to dispose of the merits because that would give both the states and federal government the guidelines that they need.

Justice Potter Stewart: There are at least two issues involving the merits.

One is, was Mandley I correctly decided?

Mr. Keith Jones: And the second is whether Mandley II was correctly decided?

Justice Potter Stewart: And secondly was Mandley II correctly decided on the merits and those are two quite different though perhaps related issues?

Mr. Keith Jones: Let me state my position this way.

I think the Court must first decide whether the AFDC Plan permits the states to pay emergency benefits.

Justice Potter Stewart: Because that is what is going on now?

Mr. Keith Jones: That is correct.

Now, if that is permissible, then as Mr. Justice Stevens suggest, the question is whether having shifted to a valid plan, the state has rendered moot the initial controversy and that would depend upon an assessment of the likelihood that it might go back to its original simple ways.

Justice William H. Rehnquist: But unless this Court were to consider Mandley I, the state would be forbidden by the mandate of the Court of Appeals in Mandley I from going back to that?

Justice Potter Stewart: Going back to EA and just say everybody?

Mr. Keith Jones: Not if this case were to be declared moot.

But, if the Court concluded that if it held that the case were moot, the state might recur to its forbidden EA Program then you would have to conclude to the contrary that it is not moot, and therefore, you would have to reach the question whether the EA Program can be tailored in the way the state has done.

Justice William H. Rehnquist: Was WT Grant a mootness case?[Laughter]

Justice John Paul Stevens: The discontinuance of the illegal practice is a factor that chancellor may consider in deciding whether or not to grant an injunction that does not render the controversy moot and that is exactly what we have got here?

Mr. Keith Jones: We have proceeded under the hypothesis that the state would not revert to an EA Program since it can satisfy its needs under the AFDC Program, but there may be reasons why the state would actually prefer an EA Program because of the differences between the two programs.

Justice John Paul Stevens: Yes, but if the state is here saying “I want to establish whether I am free to go one route or another” why is the case moot?

Mr. Keith Jones: The state has asked the case to be dismissed, is it not?

Justice John Paul Stevens: Yes, but the state’s position is that it can do either one?

Mr. Keith Jones: That is correct.

Justice Thurgood Marshall: And you do not want --

Justice John Paul Stevens: We are certainly not bound by the state’s view of mootness?

Mr. Keith Jones: That is correct.

Justice John Paul Stevens: And if they are asserting that they can do either one, how is the case moot?

Let me ask you a question, I do not understand your look?

Mr. Keith Jones: It was preparatory to a speech.[Laughter]

We have argued that the state is so unlikely to revert to an EA Program that there is no substantial probability that the WT Grant line of decisions will be implicated, but, it may well be.

That is just an evaluation of probability.

Justice John Paul Stevens: Do you think the state’s behavior in this case is in any way, influenced by their concern about what might happen by what the Court of Appeals in Mandley II regarded as rather flagrant misrepresentations to the District Court and if that was all wiped clean they might have a attitude?

I suppose there is some concern about it in the Temply Court, was there not?

Mr. Keith Jones: Absolutely.

Justice John Paul Stevens: And I think in that situation they would have very strong motivation for saying “this case is awfully moot, please leave us alone,” but if you are talking about running a welfare program and if a lot of states, and I assume some do, want to include in their EA Program certain beneficiaries who are ineligible under the AFDC Program, it seems to me it is entirely reasonable to assume Illinois might want to broaden its coverage sometime in the future.

Is that not a likely possibility?

Mr. Keith Jones: That is a likely possibility.

It is a possibility and what you say also implicates the last argument we have made in our brief with regard to the propriety of the scope of relief ordered by the Court of Appeals.

In our evaluation, the case was moot in the District Court.

Once the Courts of Appeals broadened the relief of Mandley I in its Mandley II judgment, then the implications of that decision certainly extended beyond the State of Illinois.

Although, the case might be moot as Illinois argued, it might not be moot as to many other states which would be concerned about the validity of their current programs.

My time has expired.

Chief Justice Warren E. Burger: Mr. Lefkow?

Argument of Michael F. Lefkow

Mr. Michael F. Lefkow: Mr. Chief Justice and may it please the Court.

I believe that the arguments that you have heard petitioners point out the difficulties that they bring to the Court when they do not follow orderly appellant procedures and I would like to briefly state what the procedures have been so far in my opening statement.

More than two years ago the Court of Appeals for the Seventh Circuit in Mandley I held that Illinois cannot grant federally funded emergency assistance to some needy families eligible under 406 (e) of the Social Security Act while denying it to equally eligible families under the Act.

This decision came approximately two years after the complaint was filed in the Northern District of Illinois.

In so holding that Illinois’ definition of emergency need conflicted with the federal definition of emergency assistance to needy families with children contained in Title V (a) of Social Security Act, the Court of Appeals filed a line of unanimous decisions of this Court starting with King v. Smith, Townsend v. Swank, Remillard v. Carleson.

Now, rather than comply with the Court of Appeals’ ruling or abandon federal funds or petition this Court for certiorari, the Illinois welfare officials with the cooperation and approval of the Department of Health, Education, and Welfare implemented a fictitious abandonment of federal funds for emergency assistance which has enabled it to maintain is the illegal program for more than two years after the judgment in Mandley I.

Justice William H. Rehnquist: Is it your position that Mandley II is entirely separate litigation from Mandley I?

Mr. Michael F. Lefkow: We believe it is a sequel, Your Honor, but it is different in that --

Justice William H. Rehnquist: Is it a different case in the District Court?

Mr. Michael F. Lefkow: No, both decisions arose from the same complaint, Your Honor.

Justice William H. Rehnquist: So then this Court is not bound, of course, by any Court of Appeals' decision and I presume the parties to Mandley I are not bound under any Doctrine of Res Judicata by Mandley I?

Mr. Michael F. Lefkow: I believe they are bound under Mandley I.

Of course the petitioners do not --

Justice William H. Rehnquist: You believe they are bound in what sense?

Justice Potter Stewart: It is the law of the case, is it not?

Mr. Michael F. Lefkow: It is the law of case, Your Honor.

Justice William H. Rehnquist: Well, but it is not the law of the case in this Court, it is the law of the case in the Seventh Circuit?

Mr. Michael F. Lefkow: I understand that, Your Honor.

We do say that the petitioners did not follow the orderly procedures to present this case for review on certiorari, should this Court deem it worthy of certiorari, after the judgment in Mandley I.

That has resulted and the Court of Appeals having to make a second decision to enforce its first decision and further resulted in many needy families in the State of Illinois being denied emergency assistance.

This is a case where the state has taken tactics to delay, delay, and delay.

What they did is they merely relabeled their Emergency Assistance Plan as Special Assistance, submitted it to HEW without giving any notice to the Court or to the respondents that they had done this.

HEW approved that plan for federal funding, placed its stamp of approval on it.

Justice William H. Rehnquist: Why should they have given notice to the Court?

Mr. Michael F. Lefkow: They should have given notice to the Court because it is a court of equity that was considering an Emergency Assistance Program.

This program was identical.

There was not one changed from it.

It was in violation of the mandate in Mandley I.

It was within the parameters of our complaint because we allege that their program violated federal and state law.

Justice Thurgood Marshall: They were parties to the litigation?

Mr. Michael F. Lefkow: They were parties to the litigation.

Thank you, Your Honor.

Justice William H. Rehnquist: Well, you say that as soon as you are a party to a litigation then whatever you do thereafter, you have to give notice to the court in which the litigation was commenced?

Justice Thurgood Marshall: If it affects the litigation?

Mr. Michael F. Lefkow: Well Your Honor, I think it is clear that it did affect in our opinion, the litigation.

It was clear in the Court of Appeals opinion that it affected the litigation.

The Court of Appeals found that the petitioners had engaged in circumvention of the mandate in Mandley I and we read that the Court of Appeals is clearly correct in that for all the reasons that they lay out in their opinion.

HEW, as I said also approved this plan without giving any notice to the court or to the respondents.

Justice William H. Rehnquist: Was HEW a party to the first litigation?

Mr. Michael F. Lefkow: They were, Your Honor.

They were enjoined on the motion of the State of Illinois.

The petitioners then advised the District Court that Illinois no longer had an Emergency Assistance Plan.

Contrary to representation made here today, they did not tell the court that they were going to fund the program as a regular AFDC.

They had asked the court for more time to consider what to do after the mandate in Mandley I came down because they wanted to consult certain legislative committee.

At which time, they proposed the plan to avoid the mandate.

That was on November 17.

This is noted in the opinion.

I happen to have been at the committee meeting that day.

The next day they came in to court and told the court that they are going to fund this program solely with state funds.

The Court of Appeals noted that also.

By doing so, they obtained the dismissal eventually that the case was moot.

On appeal, again, the Court of Appeals in Mandley II properly reversed and remanded with the direction to the District Court to enter the proposed final judgment and decree with certain modifications.

This was one year ago.

Despite this Court’s denial to the state of mandate to HEW and to the state, the District Court has declined to enforce the judgment pending this Court’s review.

Now, the petitioners say that the judgment in Mandley II was wrong and unnecessary and, moreover, now claim that the Court of Appeals erred in Mandley I as well.

We think that Mandley II was right and needed and we hold the same opinion obviously as to Mandley I, although we do not think the petitioners had probably sought review of that decision in this Court.

The respondents concede that the federal judicial power has substance in our national life and in our constitution of governments.

If it is a power in that subject to defeat at the hands of resistant litigants, then the Court of Appeals’ judgment must be upheld.

The Court of Appeals in Mandley I considered, for the first time by a Court of Appeals, the 1968 congressional enactment of an Emergency Assistance Program. This program had a number of purposes.

It provided that both people eligible for AFDC and people not eligible for AFDC would be eligible for emergency assistance.

It did provide short-term help to get a family over a crisis so that they might not have to be dependent upon the regular aid program.

In addition, they provided emergency help for families already receiving regular AFDC or families eligible to receive it.

In fact, the Senate report noted that this type of family would be the typical type of family that would be eligible for emergency assistance, the family who is eligible to receiving AFDC.

The legislation authorizing emergency needs to be met immediately by giving flexibility as to the form of payment.

A state could provide the payment in a hurry by cash, in kind, by vendor payments or such other methods as the state might specify.

The program was optional with the states and it was limited to a 30-day period in the twelve-month period.

And to encourage the states to participate, Congress offered the states 50% matching funds for payments made as emergency assistance. Now under this legislation, there are five points of eligibility.

There must be a needy child under the age of 21 living now or recently with a relative.

The child must be without available resources and the payment must be necessary to avoid the destitution of a child or to provide the living arrangements in a home for a child and neither the child nor the relative can have refused without good cause to accept employment or training for employment.

In 1971, Illinois adapted its first Emergency Assistance Program under Section 406 (e).

It provided nearly complete eligibility in terms of the federal statute.

It provided that the aid would be given from the local offices throughout the state by a dispersing order.

That is a form given to a merchant for say $10 for food or $15 for clothing, or whatever.

In 1973, the state administratively constricted eligibility in the face of contrary state legislation which requires them to have a full program and limited emergency assistance to new applicants for AFDC, to recipients who were homeless from result of fire, and recipients who were evicted for reasons other than non payment of rent.

Now I have noticed in their regulations just this summer that they have eliminated even those evictions.

So now, any family evicted in Illinois who is without available resources cannot receive any emergency assistance from the Public Aid Department.

In addition, they excluded all non-AFDC eligible families.

As a result of this, no relief from destitution was available to many families lacking food and clothing, all evictions now, crimes against persons of property, utility, failures of turn offs as a result of agency error or delay, or if a child is abandoned by a parent.

The state also centralized the distribution of emergency assistance in the state capital.

After an applicant’s request was approved, the case were to mail the form, just bring it for final approval and then if that was approved there, a check was mailed back to the recipient somewhere in the state.

As a result of these procedures, Illinois cut its expenditures for emergency assistance from $2.5 million a year to $500,000 a year.

In doing so, they referred many of the people they used to aid to private charities, some of whom may have joined this suit as amicus curiae.

For instance, the United Way of Metropolitan Chicago, one of its components, the Counsel for Community Services which is an umbrella group of about 280 private charities or social service agencies as amicus curiae in this suit.

These charities, lacking a regular budget to provide the need that the state has traditionally provided and ought to provide, have been unable to help many of these poor people and these people then are now just suffering, bearing their own suffering, as this Court said I think in the Maricopa County case.

Illinois testified that at the trial the reasons they constricted the program were for administrative ease and to prevent abuses and fraudulent applications.

The District Court ruled that the Department was processing applications much too slow that delays of 7-10 days in assistance were not in common.

They held for the state and federal defendants on the eligibility provision.

On appeal, the Court of Appeals in Mandley I reversed holding that Illinois could not constrict eligibility among needy families following the line of decisions that this Court has made.

It is an important principle that they follow because, by doing so, they ensure that people get the aid that Congress meant to have the aid.

Further, the court in Mandley I followed what I think is a traditional pattern and practice in litigation, at least from my knowledge of it, when they invalidate a regulation of an agency, be it federal or state, they did not order HEW to file draft regulations with the court that conform to Mandley I.

They suggested that it would be helpful to the states and to the courts if HEW would exercise its rule making power to give a new regulation to replace the one that the court invalidated.

In following the principle, this Court has said, which I believe is stated succinctly in Townsend v. Swank, that states may not vary eligibility requirements from federal standards in the absence, at least, of an authorization clearly evidenced upon the Act or its legislative history.

The Court of Appeals, by that a test to the Illinois situation and it found in Section 406 (e) (1) two areas of state discretion and no more.

It found an area of discretion for the form of payment.

The state could, as I said, make cash or vendor payments and it found that the states could in 406 (e) (2) include migrant workers if they wished, but there was no evidence in the Act to allow it to exclude the families that Illinois had excluded.

This pointing out various state discretions is, as this Court noted in Townsend, cogent evidence that Congress intended no further discretion to be given to the states to narrow eligibility and indeed, the petitioners point to no evidence on the basis --

Justice John Paul Stevens: Mr. Lefkow, do you not leap one point to what state say, to be sure that I have your answer to, they say that the mandatory language in 402 (a) (10) is that it was controlling in Townsend does not apply to the EA Program, and therefore, you do not have the same argument that you had in Townsend.

Now, what is your answer to that?

Mr. Michael F. Lefkow: My answer is that there was an error in their understanding, I believe, of the case.

First, we would say that the result is the same whether 402 (a) (10) applies or not because the principle of this Court’s decisions is the conflict of the state regulation with the federal statute and not 402 (a) (10).

In 402 (a) (10), the court focused on making sure that all eligible individuals receive assistance.

For instance, in Townsend the court italicized the term “all eligible” twice in the opinion.

Moreover, 402 (a) (10) would not had normally have an emergency assistance because it is an optional program with the state.

This is our argument that applies.

Once a state opts to provide emergency assistance, then 402 (a) (10) would become operative.

In other words, the term “aid the families with dependent children” includes whatever aid is provided under Title V (a).

Justice Thurgood Marshall: You are affirming completely that you have any quarrel with the second opinion?

Mr. Michael F. Lefkow: We have no quarrel Your Honor.

Justice Potter Stewart: Now that you have been interrupted, Mr. Lefkow, I am not sure I understand what you say is now before the Court.

As I understand it, petitioner for certiorari was granted to review Mandley II?

Mr. Michael F. Lefkow: Yes.

Justice Potter Stewart: Is that correct and Mandley II really presents only the issue of whether the program that Illinois is now carrying on under the AFDC is permissible under AFDC, is that correct?

Mr. Michael F. Lefkow: Yes, that is essentially true.

Justice Potter Stewart: That is really what it comes down to and if we hold that it is, you lose and that is the end of the case and if we hold that it is not, you win and that is the end of the case that way, without considering Mandley I at all or without considering mootness at all, is that not right?

Mr. Michael F. Lefkow: I think it would be very difficult, Your Honor, to reverse Mandley II without considering Mandley I.

Justice Potter Stewart: If this is a permissible course of action which Illinois has now taken, under its understanding of the authorization given to it by the AFDC provisions, then that is the end of it, is it not?

Mr. Michael F. Lefkow: I do not think so, Your Honor.

Justice Potter Stewart: Now, why not?

I thought you said you agreed with me at first?

Mr. Michael F. Lefkow: Well, if I did, let me make a small extension to it.

Justice Potter Stewart: Alright.

Please because it is not clear to me as to what we have before us?

Mr. Michael F. Lefkow: It seems to me that they have accepted Mandley I and that is that emergency assistance is provided pursuant to Section 406 (e) (1) of the Act if they accept federal funds.

Does that clarify it for you?

Justice Potter Stewart: I am not sure it does and maybe it is because of my lack of understanding?

Justice Thurgood Marshall: I do not see how Mandley I is here at all.

Assume that nothing was done, you could not bring up Mandley I now, because its dead?

What makes Mandley alive now?

Justice Potter Stewart: Mandley I.

Justice Thurgood Marshall: Mandley I.

Mr. Michael F. Lefkow: Your honor, the reason, it is to an extent alive is we oppose the petition for certiorari and the court did not expressly read the limit the grant of jurisdiction in Mandley II so we felt compelled of course to brief the merits in Mandley I and to present an argument upon it.

I will make no further argument.

Justice Potter Stewart: You concede --

Justice Thurgood Marshall: All I am asking you is how do we get it?

Can you give me any time where we had a case like this?

Mr. Michael F. Lefkow: Where the federal defendant has waited 548 days to petition for certiorari?

I do not know of any case.

Justice Thurgood Marshall: No, where you have two cases and one is past the time for certiorari and once the period of time to apply the certiorari is over, that is the judgment, is it not?

Mr. Michael F. Lefkow: I believe it is, Your Honor.

Justice Thurgood Marshall: Is it final?

Mr. Michael F. Lefkow: The Mandley II --

Justice Thurgood Marshall: Is it final?

Mr. Michael F. Lefkow: In my opinion, it is, Your Honor.

Justice Thurgood Marshall: Was it appealed in this case?

Mr. Michael F. Lefkow: No, it was not.

Justice Thurgood Marshall: Well, how is it here?

Mr. Michael F. Lefkow: Although the HEW did receive from this Court an extension of time within which to petition for certiorari.

Justice Potter Stewart: To review the Mandley II decision?

Mr. Michael F. Lefkow: No, to review Mandley I.

Justice Potter Stewart: Oh! To they did not petition.

Mr. Michael F. Lefkow: Did not petition and the Court of Appeals in Mandley lI noted that they considered Mandley I final and I think, of course, from the Court of Appeals’ position they had to consider Mandley I.

Justice William H. Rehnquist: Well, are any of the issues raised in the petition for certiorari in this case that is now before us dependent in any way or question in any way on Mandley I?

Mr. Michael F. Lefkow: Yes, they do.

Justice William H. Rehnquist: Well, then I do not see how you can say that Mandley I is not before us in the sense that petitioners are entitled to argue perhaps unsuccessfully whatever issues that they raised in their petition for certiorari.

You say it is the same complaint that simply went back to the District Court on remand after Mandley I.

Certainly, we are not bound by the law laid down by the Seventh Circuit in the first Mandley I case?

Mr. Michael F. Lefkow: Your honor, I would not suggest that this court could not review Mandley I.

What I tried to suggest is that the petitioners have not followed the orderly appellant procedures.

Justice William H. Rehnquist: Would you say that if the Illinois welfare people had never tried what they tried in that Mandley I under AFDC and simply started the program challenged in Mandley II that the case before us would be any different than the one that now is?

Justice Potter Stewart: That is it, is it not?

Whether Illinois can permissibly do what it is now doing under AFDC?

Mr. Michael F. Lefkow: The answer to that is, I think, Your Honor, if they believe they could do it they should have told the District Court the first time.

They should have put it in the answer.

Justice Potter Stewart: Was that a federal question?

Mr. Michael F. Lefkow: It is a federal question.

Justice Potter Stewart: I think that is maybe a failure of protocol or courtesy, but I am asking what issues are before us? Is it not just the permissibility under AFDC of what Illinois is now doing?

You concede, do you not, that any state can abandon an EA Program, it is a voluntary program, it can go into it and it can go out of it, can it not?

Mr. Michael F. Lefkow: Well, it will depend on the state’s own law.

For instance, in Illinois, Illinois has a statute that requires the state to cooperate with the federal government and to fully participate in all available federal programs.

So, we do not think that the State of Illinois is a matter of state law.

Justice Potter Stewart: It is a matter of state law?

Mr. Michael F. Lefkow: Right, but we allege that in our complaint, Your Honor.

Justice Potter Stewart: That is a matter of state law.

Why is that a concern of ours, the law of Illinois?

Justice John Paul Stevens: Mr. Lefkow, can I approach this from just a slightly different angle?

Assume contrary to the suggestions that had been made so far that the Court should address Mandley I as the first issue and assume further, and I am not suggesting this would be the conclusion, that the Court should disagree with you and reverse Mandley I, would it not be true that in that set of circumstances you would have no interest in the outcome in Mandley II?

There would be no reason to reach Mandley II if we did it that way?

As if we held that the state could grant less than the federal government authorized which it tried to do in the first instance and we rejected your argument there, would that not end the litigation?

Mr. Michael F. Lefkow: No, it would not, Your Honor because, as we mentioned, the state has a statute which requires them to fully participate and number two, we have alleged equal protection violation.

Justice John Paul Stevens: But say we disagree with you entirely on the merits of your claim that they must provide more than they originally provided under EA, then you really do not have any reason to object to the program now in effect because all you would be saying now is that it is wrong to do as much as you are doing?

Mr. Michael F. Lefkow: Well Your honor, my clients would have a reason to object to it, but whether it would be a legally cognizable reason would be another question.

Justice John Paul Stevens: It is critical to your case that you win on Mandley I or we assume Mandley I was correctly decided, one of the two?

Mr. Michael F. Lefkow: We certainly believe that it was.

Justice John Paul Stevens: However we so allow the case or merits or anything, there is no reason to get to Mandley II if we do not make the assumption that you correctly prevailed in Mandley I because it seems to me, otherwise, you would have no interest in Mandley II?

Justice Potter Stewart: There is a question, whether quite apart from previous history, whether a state right now can under AFDC authority do what Illinois is doing or must it do more?

Justice John Paul Stevens: But this litigant has no interest in that question unless it was right in Mandley I?

Mr. Michael F. Lefkow: Well Your Honor, there is no express authority in the Social Security Act for providing emergency assistance as a special need.

You heard that the petitioners have, I believe, conceded that point right here in this Court.

If the language of the statute is not clear enough, that the legislative history clearly confirms that this was a new program and that if any authority, which we do not believe existed, had aligned with HEW to provide emergency assistance as a special need, it was clearly superseded by the clear congressional direction in 406 (e) in 1968 and that we raise this question right at the start I believe with the petitioners and has struck me.

They cited this Handbook of Public Assistance Administration and Regulation which was the book or regulations HEW had before they begin promulgating them into Federal Register and Code of Federal Regulations and they read that special need regulation to the Court.

There is no mention in it of an emergency assistance. What they did not mention in their briefs or in their argument here is that prior to 1968, HEW had some regulatory material on emergency situations that we cited in our brief as Section 34.2 of the Handbook of Public Assistance Administration.

They had one on emergency payees.

They had a Section on emergency situations prior to complete the determinations of eligibility.

If HEW had any authority at all to provide emergency assistance, it would have been under these provisions, but I think it is clear from the testimony of their administration’s only witness at the senate hearings who was Under Secretary Wahlberg Cone that HEW had not viewed that they had not authority.

Under Secretary Cone testified that there was no mechanism in existing law to meet the emergency needs of children in a crisis situation and remarks on the floor of both the Senate and the House reflect that it was the new law.

There was a change in the existing law that for the first time, the federal government will match the payments for emergency assistance.

So I think it is pretty clear, whatever may have been before, the congressional direction in 1968 clearly pointed the way for states to provide emergency assistance if they provided it at all.

Under the Cooperative Federalism which pervades the Social Security Act, the states do not have the ability to tailor eligibility.

They have been given the right to set the standard of needs.

Illinois, for instance, in providing shelter for somebody who is destitute do not have to buy him a house.

They do not have to pay him two months back rent.

If they could find the barracks that was, in Chicago it is pretty cold right now, it was heated and that was adequate.

This is a minimal program.

This is not a support program in the sense that the AFDC Program is a support program.

The standards of the Act itself say that the payments have to be necessary to avoid destitution.

So that there is probably not going to be any fad in the payments that the state makes.

Justice Potter Stewart: It is emergency disaster program?

Mr. Michael F. Lefkow: Well, it is not a disaster.

Justice Potter Stewart: But it is limited to 30 days in any twelve-months period and the state can set the need and the amount?

Mr. Michael F. Lefkow: Yes Your Honor, subject to providing aid to really relieved destitution.

For instance, they at a minimum --

Justice Potter Stewart: For evictions or casualty losses and so on?

Mr. Michael F. Lefkow: Well, or food or clothing or shelter.

Justice Potter Stewart: But resulting from emergency catastrophes, is it not, or individual catastrophes, it does not have to be --?

Mr. Michael F. Lefkow: Well, the language of the reports and the remarks on the floor is that when a family suffered an emergency without limitation as to the cause or the type.

For instance, the legislation itself expresses that there is only one case of fault where a person would be denied assistance and that is when they refuse to accept employment and training for it.

So, I think Congress has clearly expressed “we want to protect children.”

We do not want any children to be without the very essentials of life” because really this is what this country is about, is trying to make a better life for everyone, I think.

Justice Potter Stewart: It is what this legislation is about?

Mr. Michael F. Lefkow: It certainly is.

It is a sound social policy that Congress has adapted in this legislation.

We would say one further point on Mandley II is that there is no evidence in the statutes of the duel authority to provide emergency assistance that the petitioners claim.

There is simply one way and that is it has to meet the eligibility requirements of Section 406 (e).

I do want to make a reference to this idea that the 45 states provide special needs and I believe that there is an inference that many states provide emergency assistance.

Well, I think one of them did say that only five states provided assistance.

From what we have gleaned from this document of HEW, which is not really very clear, only five states provides some very limited items of assistance.

But in their brief, HEW concedes 27 states participate in the Emergency Assistance Program.

15 of them and I am not sure if this is in the brief, but 15 of them have full eligibilities required by Section 406 (e) and the other 12 have different degrees of eligibility.

Justice Potter Stewart: But all less than the full?

Mr. Michael F. Lefkow: Right.

Justice Potter Stewart: So all of those 12 would be in violation under Mandley I, correct?

Mr. Michael F. Lefkow: That would be correct, Your Honor.

We believe that Mandley II was clearly correct on the law.

It is an analysis of the legislation and the history of the legislation, I think, prohibits their conduct and prohibits their claiming funds in this manner.

If they have had a reasonable basis for believing it, I think that they would advanced it long before presenting it for the first time to the Court of Appeals in Mandley II.

They never told the District Court on remand that “we can do it this way.”

They wanted to keep it a secret, an administrative secret perhaps.

It was and they kept it a judicial secret.

I do not see how a court can function unless it gets full advocacy of the truth.

I would like to turn, if I may, to the relief question.

The facts show that this is a most unusual case.

I think it is a unique case.

HEW had issued a regulation.

It was invalidated.

The regulation on emergency assistance, Your Honor, was invalidated.

The Court in Mandley I invited HEW to issue a new one.

HEW did not issue a regulation.

It did not petition for certiorari.

It approved Illinois’ plan without any regulation at all.

This is a message to the states that you can ignore Mandley I.

You can ignore judicial decisions because we are going to put the stamp on your plan and you need to carry that over to the Secretary of the Treasury to collect your 50% reimbursement.

They also did not redefine their special need regulation.

They could have put ineligibility standards in that if they really believe that they could do it under AFDC.

They could have put in a timeliness requirement because under AFDC, there is no forthwith requirement as there is in emergency assistance.

The only requirement now is that a person receive assistance within 45 days.

An emergency assistance delays is emergency assistance denied.

They did not make any recommendations to Congress that they needed new legislation or hold any hearings in the states to see if there were any problems in administering an Emergency Assistance Program as the Court of Appeals in Mandley I defined it.

They engaged in the circumvention of the mandate and the Court of Appeals in Mandley II found that they had indeed circumvented the mandate.

Under those circumstances, within three years since the complaint was filed in a case involving the needs of people in the most dire straights in the one year since the mandate had been returned with no action by HEW, I would not say no action, they have approved the plan illegally.

The court, considering Mandley I was a final judgment, granted what we believe was equitable relief.

It ordered HEW not to approve plans inconsistent with 406 (e).

It directly then issued a new regulation to replace the old one and I think that this is important.

They modified the judgment that was proposed by the plaintiffs and they removed from it the requirement on HEW to define certain terms of the 406 (e) definition.

I think perhaps it is best and easiest to just cite what the Court of Appeals said.

“It did not require HEW to define necessary to avoid destitution or lack of available resources.”

Those terms were not really at issue in this litigation.

What the court said was this.

“While it would be salutary to include such definitions in the new regulation, while the Secretary might find it necessary as a matter of administrative practicality to include any items in this new regulation -- to include them, we will not order HEW specifically to include any items in this new regulation.

Of course, whatever regulations the Secretary issues, it must be consistent with today’s opinion in Mandley I.

Chief Justice Warren E. Burger: We will resume there at 1 o' clock counsel.

Mr. Michael F. Lefkow: Thank you, Your Honor.

Chief Justice Warren E. Burger: Counsel, you may continue.

Mr. Michael F. Lefkow: Mr. Chief Justice and may it please the Court.

I would like to clarify our position in regard to emergency assistance and special needs or emergency assistance as a special need.

Our position is this.

If a state should be allowed by this Court to grant emergency assistance as a special need.

A state must still do so in accordance with the eligibility requirements of Section 406 (e).

Congress in Section 403 (a) (5) of the Act, which is the funding provision, provides that for federal reimbursement if a state makes payments as emergency assistance to needy families with children and that a statute is contained in the yellow brief at page A4, on A4 is a continuation of the full statute set out, it begins at A2, and at A4 (subparagraph 5), and the previous parts would read with it, “The Secretary of the Treasury shall pay to each state which has an approved plan for aiding services to needy families with children.

In the case of any state, an amount of 50% of the total amount expended under the state plan during such quarter as emergency assistance to needy families with children.”

This language reflects that Congress contemplated the function of emergency assistance.

If it had just meant emergency assistance in 406 (e), it might have said “of” emergency assistance to needy families with children, but it said “as.”

I can think of no better words to sum it all up than to repeat what Judge Cummings said writing for the court in Mandley II, “a rose is a rose, is a rose.

Emergency assistance is emergency assistance no matter what the state may call it.”

The Solicitor General, here today, acknowledges that he does not know why the state participated in 406 (e) if they can do the same thing as a special need.

I suppose the we could all say that if that view should prevail here that we do not know why Congress enacted 406 (e), but we think Congress had that special reason to enact it and that was to make sure that all needy families with children who face these dire circumstances and had no available resources to meet emergency needs receive some aid.

A contrary result would mean that Congress’ statute would be, as the Court of Appeals said in Mandley II, totally eviscerated.

On the other points, there are ways concerning relief both as to federal and state defendants.

We believe that they are fully covered in our briefs and there has not been any contest on their part about them that we believe that the Court of Appeals was clearly correct in ordering the relief that it did, and that it should be sustained.

The result recently in Mandley I and in Mandley II is a just result.

Our elected representatives have adapted a sound social policy in the emergency assistance provisions of the Social Security Act.

The federal and state welfare agencies charged with the duty to administer that policy have, the Court of Appeals has ruled, illegally refused to discharge their obligations to the great injury of people’s most dire straights and to the public good as well.

The beneficiaries of Congress’ providential policy whom we represent appeal to this court to confirm the protections afforded to them by the Court of Appeals by affirming the judgment of the court.

Thank you.

Chief Justice Warren E. Burger: Thank you, Gentlemen.

The case is submitted.