Proposed Agency Interpretation of “Federal Means-Tested

Public Benefit[s]” Under Personal Responsibility and Work

Opportunity Reconciliation Act of 1996

The interpretation of the phrase “ federal means-tested public benefit[s]” in the Personal Responsibility 

and W ork Opportunity Reconciliation Act of 1996 proffered by the Departments of Health and 

Human Services and Housing and Urban Development — that it applies only to m andatory (and 

not discretionary) spending program s— constitutes a perm issible and legally binding construction 

o f the statute.

January 14, 1997

M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l

D e p a r t m e n t o f H e a l t h a n d H u m a n S e r v i c e s

You have requested the views of the Office of Legal Counsel regarding a 

construction, proffered by the Departments of Health and Human Services 

(“ HHS” ) and Housing and Urban Development (“ HUD” ), of the scope of the 

phrase “ federal means-tested public benefit[s]” contained in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“ PRA” or “ Act” ).1 

In particular, HHS and HUD have concluded that this phrase is best construed 

to apply only to mandatory (and not discretionary) spending programs.2 Both 

departments have determined that this construction of the PRA “ best balances 

[their] other statutory obligations with Congressional goals embodied in the 

[PRA].” 3 We further understand that the Departments of Agriculture, Education, 

Labor and Veterans Affairs and the Social Security Administration all concur in, 

or defer to, the HHS and HUD proffered interpretation of the PRA.4

As explained more fully below, we believe that the proffered interpretation is 

a permissible construction of the statute. The PRA was enacted as a budget reconciliation bill, and, accordingly, must be construed against the backdrop of the 

Congressional Budget Act of 1974 (“ CBA” ).5 Under the CBA, budget reconciliation legislation is subject to expedited procedures in both the Senate and the 

House. To counterbalance these expedited procedures, the CBA permits a member 

of the Senate to raise a point of order against any material included in the legislation that is extraneous to the budget reconciliation process. Here, through application of this procedure, a broad definition of the phrase “ federal means-tested

'P u b L No 104-193, 110 Stat 2105

2 See Letter for Christopher H Schroeder, Acting Assistant Attorney General, Office of Legal Counsel, from Harriet 

S Rabb, General Counsel, Department of Health and Human Services (Dec. 13, 1996) (“ Rabb Request” )

3 See. e g., Letter for Arthur Fried, General Counsel, Social Security Administration, from Ham et S Rabb, General 

Counsel, Department of Health and Human Services and Nelson A Diaz, General Counsel, Department of Housing 

and Urban Development (Nov 21, 1996) (“ Rabb/Diaz Letter” )

4 Rabb Request at 1 Since receiving your letter of December 13, 1996, we have received oral advice from your 

office that the Social Security Administration concurs in the proffered definition

5 Pub L. No 93-344, 88 Stat 297 (1974) (codified as amended in scattered sections of 2 U.S.C ).

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Opinions o f the Office o f Legal Counsel in Volume 21

public benefit” was struck from early versions of the bill that ultimately became 

the PRA. Significantly, the broad definition was struck because it reached discretionary spending programs, which, in this context, lay beyond the proper scope 

of the reconciliation process.

In light of this history, and the absence of a sufficiently clear indication that 

Congress intended, notwithstanding the CBA, to reach discretionary spending programs, we conclude that the meaning of the phrase “ federal means-tested public 

benefit” is, at the very least, ambiguous. We further conclude that the HHS/HUD 

proffered definition is a reasonable construction of the statute, that the agency 

interpretation is entitled to judicial deference, and that, accordingly, the proffered 

definition should govern.

DISCUSSION

Title IV of the Personal Responsibility and Work Opportunity Reconciliation 

Act of 1996, 110 Stat. at 2260, imposes various restrictions on aliens’ eligibility 

for public benefits in the United States. A number of provisions in title IV establish restrictions with respect to aliens’ receipt of “ federal means-tested public 

benefit[s].” These restrictions fall into three general categories: (1) provisions that 

deny “ federal means-tested public benefit[s]” to qualified aliens for the first five 

years after their entry into the United States;6 (2) provisions that require certain 

groups of aliens who seek federal and state public benefits to prove that they 

can be credited with 40 qualifying quarters of work under title II of the Social 

Security Act ( “ SSA” ) and have not received any “ federal means-tested public 

benefit” during any of those quarters;7 and (3) provisions that establish and define 

sponsor-to-alien deeming rules to be applied to aliens seeking “ federal meanstested public benefit[s].” 8

The PRA contains no statutory definition of the phrase “ federal means-tested 

public benefit.” HHS and HUD, however, have concluded that the restrictions 

on federal means-tested public benefits contained in tide IV should apply only 

to mandatory spending programs, i.e. programs for which funding is not subject 

to a definite appropriation.9 Under this construction of the Act, for example, newly 

arrived qualified aliens would be ineligible for benefits under mandatory programs 

for the first five years after their anrival in this country, but they would remain 

eligible for benefits under discretionary spending programs. The rationale of HHS 

and HUD for this approach is that ‘ ‘affected departments should hesitate to apply

6 See § 403(a) & (c), 110 Stat. at 2265-66.

7 See §§402(a)(2)(B)(ii)(II), 402(b)(2)(BMH)(Il). 412(b)(2XBXii), 435; 110 Stat. at 2262-63. 2264-^5, 2269. 2275- 

76.

*See § 4 2 1(a), (b)(2)(B), (c), (d), 110 Stat. at 2270-71.

9 W hile we have not been provided with a comprehensive list of which programs would be subject to these title 

IV restrictions under the HHS/HUD interpretation, we understand that Medicaid, food stamps. Supplemental Security 

Income (“ SSI” ), and Temporary Assistance for Needy Families (“ TANF” ) are included within the mandatory category.

22
the term ‘federal means-tested public benefit’ broadly in a manner that would 

deny qualified aliens more benefits than Congress may have clearly intended.” 

Rabb/Diaz Letter, attachment at 4. HHS and HUD assert that “ this reading of 

the term best balances our Departments’ other statutory obligations with Congressional goals embodied in [the PRA],” Rabb/Diaz Letter at 1, and that “ sound 

legal and policy considerations support a conclusion that the term is limited to 

means-tested mandatory spending programs.” Rabb/Diaz Letter, attachment at 1.

In evaluating the construction proposed by HHS and HUD, we are guided by 

the Supreme Court’s landmark opinion, Chevron U.S.A. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984), which explains the proper approach 

for reviewing the construction of statutes by the agencies that administer them. 

The first step in the Chevron analysis is to determine “ whether Congress has 

directly spoken to the precise question at issue.” 467 U.S. at 842. If congressional 

meaning, as discerned through “ traditional tools of statutory construction,” id.

at 843 n.9, is clear, then no further inquiry is necessary, for the “ unambiguously 

expressed intent of Congress” must control. Id. at 843. See also United States

v. Alaska, 503 U.S. 569, 575 (1992). If the statute is silent or ambiguous with 

respect to the issue posed, then, under the second step in the Chevron analysis, 

the questions become whether Congress has implicitly or explicitly delegated to 

the agency the authority to resolve the ambiguity and, if so, whether “ the agency’s 

answer is based on a permissible construction of the statute.” Chevron, 467 U.S. 

at 843. See also Alaska, 503 U.S. at 575.

I. Chevron Step I

The starting point in determining whether “ Congress had an intention on the 

precise question at issue,” Chevron, 467 U.S. at 843 n.9, is, of course, the language of the statute itself. See Kaiser Aluminum & Chem. Corp. v. Bonjomo,

494 U.S. 827, 835 (1990); Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc.,

447 U.S. 102, 108 (1980). Ordinarily, if the terms of the statute are plain, they 

control and that is the end of the matter. See Chevron, 467 U.S. at 843; Holly

Farms Corp. v. NLRB, 517 U.S. 392, 398 (1996).

At the same time, it is well-established that a provision in one act of Congress 

should be read in conjunction with other relevant statutory provisions and not 

in isolation. See Jett v. Dallas Indep. School Dist., 491 U.S. 701, 712-13, 722- 

36 (1989); id. at 738-39 (Scalia, J., concurring in part and concurring in the judgment); see also Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995). Thus, courts 

regularly construe statutory language in light of both other provisions of the same 

law and relevant provisions from other laws. See, e.g., Quackenbush v. Allstate

Ins. Co., 517 U.S. 706, 711-12 (1996); Sullivan v. Everhart, 494 U.S. 83, 92 

(1990); cf. Sullivan v. Finkelstein, 496 U.S. 617, 632 (1990) (Scalia, J., concurring) (meaning of later enacted statute may affect interpretation of “ previously

Proposed Agency Interpretation o f “Federal Means-Tested Public Benefit[sj” Under Personal

Responsibility and Work Opportunity Reconciliation Act o f 1996

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Opinions o f the Office o f Legal Counsel in Volume 21

enacted statute, since statutes in pari materia should be interpreted harmoniously” ). The fact that different statutory provisions may employ similar terms 

in varying contexts, for example, may give insight as to the meaning of the term 

in the particular context that is under review. See Medtronic, Inc. v. Lohr, 518 

U.S. 470, 487-89 (1996) (plurality opinion). Similarly, the possibility that the 

adoption of a seemingly plain statutory meaning may cause a direct conflict with 

a different statutory provision, even if in a different law, may trigger application 

of the presumption against repeals by implication. See Watt v. Alaska, 451 U.S. 

259, 266 (1981); FAA v. Robertson, 422 U.S. 255, 263 (1975); Silver v. New

York Stock Exchange, 373 U.S. 341, 357 (1963). Moreover, courts commonly rely 

upon a general interpretive statute, the Dictionary Act, 1 U.S.C. § 1, in construing 

specific statutory language that, but for the otherwise-codified definitional provision, might suggest a different meaning. See Rowland v. California M en’s Colony,

506 U.S. 194, 199-200, 209-10 (1993); id. at 212-13, 222 (Thomas, J., dissenting); Wilson v. Omaha Indian Tribe, 442 U.S. 653, 666 (1979); United States

v.A&P Trucking Co., 358 U.S. 121, 123 (1958).

The general rule that the meaning of particular statutory provisions should be 

determined with reference to the broader legislative landscape provides significant 

guidance here. As reconciliation legislation, the PRA must be interpreted in the 

context of both the Congressional Budget Act of 1974, which establishes general 

rules that govern the enactment of budget reconciliation measures, and congressional actions taken pursuant to that statutory regime. Just as courts, when considering a term that has been defined in the Dictionary Act, read that term in light 

of the Dictionary Act definition, so too, here, the rules set forth in the CBA provide important guidance in discerning the meaning of the relevant provisions of 

the PRA.

A.

The PRA was brought to the floor of the Senate as a reconciliation bill, and 

as such was subject to the special rules that govern the reconciliation process 

set forth in section 313 of the CBA. See 2 U.S.C. §644 (1994); Robert Keith 

& Edward Davis, The Senate’s “Byrd Rule” Against Extraneous Matter in Reconciliation Measures 1-2 (Congressional Research Service 1995). Section 313 

serves to facilitate the expedited consideration of reconciliation legislation by providing a mechanism for restricting the content of such legislation to provisions 

that are material to the reconciliation process. See Allen Schick, The Federal

Budget: Politics, Policy, Process 82—86 (1995). Over time, these subject matter 

restrictions have become known as the “ Byrd rule,” after Senator Robert Byrd 

of West Virginia, their principal proponent. The basic purpose of the Byrd rule 

is twofold: to protect the effectiveness of the reconciliation process by excluding 

extraneous material that has no significant budgetary effect, and to preserve the

24
deliberative character of the Senate by exempting from expedited consideration 

all legislative matters that should properly be debated under regular procedures.10

Section 313 establishes the general framework that governs the nation’s budgeting process and shapes the content of the legislation that Congress enacts 

through the reconciliation process. Indeed, the Byrd rule has been deemed sufficiently important to the fashioning of the nation’s budget that it is not merely 

an internal rule of Senate procedure but, as we have noted, a statute duly passed 

by both houses of Congress and signed by the President. The meaning of a particular provision of reconciliation legislation, therefore, such as the phrase “ federal means-tested public benefit” in the PRA, must be construed in light of 

congressional actions taken pursuant to the CBA.

Specifically, the CBA provides:

When the Senate is considering a reconciliation bill or a reconciliation resolution . . . upon a point of order being made by any Senator against material extraneous to the instructions to a committee 

which is contained in any title or provision of the bill or resolution 

or offered as an amendment to the bill or resolution, and the point 

of order is sustained by the Chair, any part of said title or provision 

that contains material extraneous to the instructions to said Committee as defined in subsection (b) of this section shall be deemed 

stricken from the bill and may not be offered as an amendment 

from the floor.

Pub. L. No. 93-344, tit. Ill, §313 (codified at 2 U.S.C. § 644(a)). Section 

313(b)(1) outlines six categories of “ extraneous” provisions, the most significant 

of which, for purposes of this analysis, is (b)(1)(D), which states that a provision 

shall be considered extraneous “ if it produces changes in outlays or revenues 

which are merely incidental to the non-budgetary components of the provision.”

2 U.S.C. § 644(b)(1)(D). The rule, as set forth in section 313, is enforced by a 

Senator raising a point of order against some provision or provisions of the bill, 

on the ground that that provision deals with subject matters extraneous to the 

legislation.

10The Byrd rule was adopted in 1986, following years of struggle on the Senate floor over the inclusion of 

extraneous provisions in budget reconciliation legislation. Originally enacted as section 20001 of the Consolidated 

Omnibus Budget Reconciliation Act of 1985, Pub L. No. 99-272, §20001, 100 Stat 82, 390-91 (1986), it was, 

in 1990, incorporated as section 313 of the Congressional Budget Act of 1974 See Budget Enforcement Act of 

1990, enacted as Title XIII of Omnibus Budget Reconciliation Act of 1990, Pub. L No. 101-508, § 13214(b)(1), 

104 Stat 1388, 1388-622. As Senator Byrd explained in introducing the amendment that ultimately bore his name: 

Mr President, the Senate is a deliberative body, and the reconciliation process is not a deliberative 

process . . Such an extraordinary process, if abused, could destroy the Senate’s deliberative nature 

Senate committees are creatures of the Senate, and, as such, should not be in the position of dictating 

to the Senate as is being done here By including mater[i]al not in their jurisdiction or matter which 

they choose not to report as separate legislation to avail themselves of the nondeliberative reconciliation 

process. Senate committees violate the compact which created both them and the reconciliation process 

131 Cong. Rec. 28,968 (1985)

Proposed Agency Interpretation o f “Federal Means-Tested Public Benefit[s]“ Under Personal

Responsibility and Work Opportunity Reconciliation Act o f 1996

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Opinions o f the Office o f Legal Counsel in Volume 21

The PRA’s original definition of “ federal means-tested public benefit,” contained in both the Senate and House bills, encompassed an expansive range of 

benefit and assistance programs and did not distinguish between those that were 

mandatory and those that were discretionary. When the Senate bill reached the 

floor, Senator Exon invoked the Byrd rule to raise an omnibus point of order 

against a number of provisions of the legislation, including the definition of ‘ ‘federal means-tested public benefit.” 142 Cong. Rec. 18,296-97 (1996). His objection to this provision was based upon section 313(b)(1)(C) of the CBA, i.e. the 

provision was not within the Finance Committee’s jurisdiction. Id. at 18,297.

The Parliamentarian upheld Senator Exon’s Byrd rule objection on the grounds 

that the provision was outside the Finance Committee’s jurisdiction and that, to 

the extent the definition encompassed discretionary programs, its impact on the 

budget was “ merely incidental.” 11 Rules determining eligibility for discretionary 

program benefits within a reconciliation bill have no direct effect on the budget. 

Rather, reducing the size of a discretionary program is accomplished by Congress 

reducing the appropriation for the program, which the proposed definition of ‘ ‘federal means-tested public benefit” did not do. By contrast, so-called entitlement, 

or mandatory, programs, generally operate under indefinite appropriations; the size 

of the program is not determined based on a fixed appropriation, but rather on 

expenditures incurred for all eligible program participants. Thus expenditures 

under mandatory programs can be directly reduced by restricting eligibility and 

thereby reducing the number of people receiving benefits.

The ruling sustaining Senator Exon’s objection was not appealed by any other 

Senator. As a result, the definition of “ federal means-tested public benefit” was 

struck from the Senate bill. Moreover, the House acceded to the Senate deletion 

and agreed to remove its own expansive definition of the term “ federal meanstested public benefit” in conference. The conference committee acknowledged the 

deletion of the definition under the Byrd rule. 142 Cong. Rec. 20,484 (1996).

This legislative record provides strong evidence that the phrase ‘ ‘federal meanstested public benefitfs],” as used in the PRA, should be construed to reach only 

mandatory (and not discretionary) spending programs. In keeping with section 

313, a Byrd rule objection was made and sustained, a definition was dropped 

from the bill in response to the objection, and the House acceded to the Senate 

version of the bill in light of the Byrd rule objection. To ignore these events

11 The Parliamentarian upheld the objection on the basis of both sections 313(b)(1)(C) (not within Finance Committee’s jurisdiction) and 313(b)(1)(D) (prohibition against policy changes with “ merely incidental” budgetary impact). 

See 142 Cong Rec 20,975 (1996) (statement of Senator Graham dunng consideration of conference report on H R. 

3734), see also id at 20,979 (statement of Senator Chafee) Although Senator Exon’s specific objection to the definition, as itemized in his list, was jurisdictional only, he raised that objection in an omnibus point of order based 

generally upon section 313(b)(1), which permitted the Parliamentarian to consider any basis under (b)(1) for 

upholding the objection In any event, in this case it ultimately makes no difference to the analysis whether Senator 

Exon’s objection was sustained on jurisdictional grounds alone or on both grounds because any jurisdictional objection under section 313 is based upon the fact that the Senate committee considering a reconciliation bill would 

only have jurisdiction over mandatory programs. See Schick, The Federal Budget 83 (1995) (under current practice, 

“ reconciliation instructions are given only to committees that have jurisdiction over revenues or direct (mandatory) 

spending program s’’). Thus, the underlying reasoning for objections under (b)(1)(C) and (b)(1)(D) is the same.

26
in determining the meaning of the phrase “ federal means-tested public benefit” 

would be to disregard the purpose and language of section 313 itself, which serves 

to facilitate the budgeting process by providing a mechanism by which the scope 

of reconciliation legislation may be contained.12

B.

Several aspects of the text and legislative history of the PRA, when viewed 

in isolation, arguably support a broad interpretation of “ federal means-tested 

public benefit” that would include discretionary programs. Ultimately, however, 

we find little evidence that Congress, in passing the final version of the bill, 

intended to reintroduce the very definition that had been struck through the operation of section 313 of the CBA. What evidence does exist is at best ambiguous, 

and thus, in our view, does not foreclose HHS and HUD, two of the agencies 

charged with administering the Act, from construing the PRA in the manner that 

they propose.

As previously noted, the PRA, as enacted, contains no definition of the phrase 

“ federal means-tested public benefit.” Had Congress intended for this phrase to 

include discretionary spending programs, over the sustained objection of a member 

of the Senate, it could have reinserted the deleted definition or similar language 

in the final version. Indeed, the conference committee did reintroduce a number 

of other provisions that also had been struck from the Senate bill through Senator 

Exon’s omnibus Byrd rule objection, and Congress ultimately voted to retain these 

provisions in the final version of the PRA. See §816, 110 Stat. at 2318 (caretaker 

exemption; originally § 1126 of S. 1956, 104th Cong. (1996)); §838, id. at 2331 

(expedited coupon service; originally § 1148 of S. 1956; § 850, id. at 2336-37 

(waiver authority; originally § 1159 of S. 1956); § 729(d), id. at 2303 (WIC program/drug abuse; originally § 1259(d)(1) of S. 1956); §912, id. at 2353—54 

(abstinence education; originally § 2909 of S. 1956); compare with S. 1956 (July 

16, 1996 and July 24, 1996 versions). The decision of the conference not to 

reintroduce the deleted definition of “ federal means-tested public benefit” leaves

12 Some language in one appellate decision might be read to suggest that courts should distinguish between procedural and substantive legislative motivations in inferring congressional intent. See Elizabeth Blackwell Health O r. 

fo r Women v. K noll 61 F 3d 170, 180 (3d Cir. 1995), cert denied. 516 U S 1093 (1996) The appellees in Elizabeth

Blackwell Health Center argued that Congress, by using a rule of House parliamentary procedure to eliminate a 

provision in the 1994 Hyde Amendment requiring victims of rape or incest to report the cnm e to the police pnor 

to seeking publicly funded abortions, intended to prohibit state statutes imposing such reporting requirements. The 

Third Circuit rejected that argument slating that, “ [a]t most, the rejection [of the provision] is a sign that Congress 

did not wish to mandate reporting requirements on the states,” and lhat Congress’s rejection of mandatory reporting 

requirements “ on procedural grounds provides no basis for any inference regarding Congress’s views about the 

substantive provisions of the legislation ” 61 F.3d at 180 Unlike here, the procedural objection made in Elizabeth

Blackwell Health Center did not in any way suggest that Congress intended the specific interpretation offered in 

that case. The procedural objection raised to the reporting provision was based upon a House rule of parliamentary 

procedure that prohibited attempts to “ legislate” on an appropriations bill. Id at 174 The basis for this objection 

bore no relationship to the substantive interpretation appellees urged. In contrast, here the definition proffered by 

HHS and HUD is based upon a budgetary distinction between mandatory and discretionary programs, precisely 

the same basis upon which Senator Exon’s Byrd rule objection was made

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the PRA without the most obvious textual guidance that Congress might have 

provided had it wished to adopt the previously stricken definition.

The PRA does, however, define the related phrase “ federal public benefit” 

broadly, and in a manner that appears to draw no distinction between mandatory 

and discretionary programs.13 The phrase “ means-tested,” moreover, though not 

defined in the statute, is defined in the dictionary.14 It could be argued that these 

two phrases combine to produce a phrase that is sufficiently plain to make clear 

that, in enacting the bill, Congress effectively overruled the prior Byrd rule deletions.

Although not entirely without force, we find this argument inconclusive. First, 

even assuming that the phrases “ federal public benefit” and “ means-tested” are 

free of ambiguity, the proposition that combining plain terms necessarily results 

in an equally plain phrase is not at all self-evident.15 See, e.g., Smiley v. Citibank, 

517 U.S. 735, 746—47 (1996). It is not clear, therefore, that, even ignoring the 

deletion of the broad definition pursuant to the CBA, the bill’s final language 

is so free from ambiguity as to be deemed plain.

More important, as we have explained, the PRA was enacted as reconciliation 

legislation, and thus can be understood only in light of the special rules that Congress set forth in the CBA and the congressional action taken pursuant to those

13 Section 401(c)(1) defines “ federal public benefit” as

(A) any grant, contract, loan, professional license, or commercial license provided by an agency 

o f the United States or by appropriated funds of the United States, and

(B) any retirement, welfare, health, disability, public or assisted housing, postsecondary education, 

food assistance, unemployment benefit, or any other similar benefit for which payments or assistance 

are provided to an individual, household, or family eligibility unit by an agency of the United States 

or by appropriated funds of the United States

110 Stat at 2262

l4The dictionary defines “ means test” as “ any examination of (he financial state of a person as a condition 

precedent to receiving social insurance, public assistance benefits, or other payments from public funds,” Webster's

Third New International Dictionary 1399 (3d ed 1986) See also Random House Dictionary o f the English Language

1192 (2d ed 1987) (“ means test” is “ an investigation into the financial position of a person applying for aid 

from public funds” ) Despite this definition, precisely what constitutes a “ means test” in the context of federal 

programs that distribute benefits on the basis of need is not clear Some federal programs look to both an applicant’s 

income and his or her resources to determine eligibility See, e g , Medicaid program, 42 U S C. §§ 1396—1396v 

(1994 & Supp II 1996^, Supplemental Security Income program, 42 U S C. §§ 1381—138la (1994), Food Stamp 

program, 7 U S.C §§2011-2032 (1994 & Supp U 1996) Others look only to income without any inquiry into 

resources. See, e g . National School Lunch program, 42 U S C §§ 175l-1769h (1994 & Supp II 1996); Women, 

Infants & Children program, 42 U S.C §1786 (1994 & Supp 11 1996) Still others presume need on the basis 

o f area of residence, enrollment in another welfare program, or some other factor See, e.g., Indian health services, 

42 C F R. §36 12 (eligibility based upon area of residence). Commodity Supplemental Food Program, 7 U S C . 

§ 612c note (1994) (eligibility based upon enrollment in another government benefil program for low-income persons), 

Chapter 1 migrant education program, 20 U S.C. § 6398 (1994) (presumption of need for migrant children)

15 An unrelated provision of the PRA itself hints at the ambiguity of the phrase “ federal means-tested public 

benefit” Section 911 of the PRA ensures that individuals whose benefits have been reduced because of an act 

o f fraud by the individual may not receive increased benefits under “ any other means-tested welfare or public assistance program for which Federal funds are appropriated” as a result o f such reduction. §9 1 1(a), 110 Stat. at 2353. 

The provision then defines the phrase “ means-tested welfare or public assistance program for which Federal funds 

are appropriated” to include “ the food stamp program , any program of public or assisted housing under title 

I of the United States Housing Act of 1937 ., and any State program funded under part A of title IV of the 

Social Security A ct.” § 9 1 1(b), 110 Stat at 2353 The provision does not slate whether these programs are intended 

to be exhaustive or exemplary, but, in any event, the fact that Congress concluded that it was necessary to provide 

a definition of some sort suggests that Congress did not believe that the meaning of the defined phrase was plain.

28
rules. Therefore, the critical question is not whether the phrase “ federal meanstested public benefit” is plain when read in isolation, but rather whether the phrase 

reveals that Congress intended to incorporate the definition that the Senate had 

deleted, with the House’s acquiescence, as a consequence of its compliance with 

the budgetary rules established by section 313. The PRA’s definition of “ federal 

public benefit” does not reveal such an intention. That same definition was 

already in the bill at the time Senator Exon raised his point of order objecting 

to the definition of “ federal means-tested public benefit.” Its inclusion in the 

final bill, therefore, cannot reasonably be viewed as a rejoinder to Senator Exon’s 

objection.

Moreover, even apart from the operation of section 313, it is a well-settled 

canon of interpretation that “ where the final version of a statute deletes language 

contained in an earlier draft, [it may be presumed] that the earlier draft is inconsistent with ultimate congressional intentions.” In re Town & Country Home

Nursing Servs., Inc., 963 F.2d 1146, 1153 (9th Cir. 1991); see also Russello v. 

United States, 464 U.S. 16, 23-24 (1983); G ulf Oil Corp. v. Copp Paving Co.,

419 U.S. 186, 200 (1974) (Congress’s deletion of provision “ strongly militates 

against a judgment that Congress intended a result that it expressly declined to 

enact” ); cf. INS v. Cardoza-Fonseca, 480 U.S. 421, 442—43 (1987) (“ ‘Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier 

discarded in favor of other language.’ ” ) (citations omitted). That canon surely 

applies with particular force in a context such as this, in which the deletion occurs 

by reason of an independent congressional statute that governs the nation’s budgeting process.

A second textual argument that could be made in support of a broader definition 

arises from the list of exceptions to “ federal means-tested public benefit” programs in section 403(c)(2) of the PRA. The inclusion of some discretionary programs in this list of exceptions would be unnecessary unless the term itself 

included such programs. As an initial matter, we note that the logic of this argument proves too much, particularly in light of other drafting flaws that appear 

in the Act. The same provision that excepts certain discretionary programs from 

the limitation on eligibility for “ federal means-tested public benefit[s],” for 

example, also excepts certain programs specified by the Attorney General that 

are not conditioned on “ the individual recipient’s income or resources.” 

§ 403(c)(2)(G), 110 Stat. at 2266. The view that Congress would not have excepted 

a program that was not otherwise covered would erroneously suggest that “ meanstested” must be a more expansive term than the phrase “ condition[ed] . . . on 

the individual recipient’s income or resources.”

More to the point, the list of exceptions included in section 403(c)(2) is quite 

plausibly understood as an inconsistency resulting from the proper operation of 

the Byrd rule itself. The remedy provided in section 313 is a blunt instrument

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offering a basis for striking extraneous material in a reconciliation bill, but no 

mechanism for re-drafting remaining legislative provisions to conform them to 

the legislation as revised by application of the Byrd rule. Indeed, there was no 

careful mark-up of the bill following the deletion of the definition of “ federal 

means-tested public benefit,” where inconsistent provisions might have been 

brought into conformity.16

Moreover, it is unlikely that members of Congress would have seen the list 

of exceptions as obviously inconsistent with the PRA as revised by application 

of the Byrd rule. The categorization of particular programs as mandatory or discretionary is not at all obvious, and it is likely that many, if not most, members 

did not know precisely which programs fell into which category.17 In addition, 

the list of exceptions can be seen as Congress’s attempt to safeguard certain programs from any definitional skirmishes and ensure their exception.18

We are also unpersuaded that the legislative history of the PRA supports the 

conclusion that Congress intended to enact extraneous material through the reconciliation process over the sustained objection of a member of the Senate. 

Although noting that the definition of “ federal means-tested public benefit” was 

deleted from the bill through operation of section 313, the conferees’ report on 

the PRA nonetheless asserts that “ [i]t is the intent of the conferees that [the 

deleted] definition be presumed to be in place for purposes of this title.” 142 

Cong. Rec. 20,484 (1996). We believe that this statement in the conferees’ report 

cannot be taken as controlling.

As noted above, “ ‘[f]ew principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.’ ” CardozaFonseca, 480 U.S. at 442—43 (citations omitted). Here, this rule cannot plausibly 

give way to contrary legislative history. Both houses of Congress deleted the definition of “ federal means-tested public benefit” : the Senate did so on the basis

l6SimiIar inconsistencies appear in other provisions of the PRA as a result of Byrd rule deletions For example, 

the family cap provision of S 1956, see § 103 of July 16 version of S 1956 (establishing new section 408(a)(2) 

o f TANF program), was deleted through a Byrd rule objection The conference report notes this deletion and the 

provision does not appear in the final version of the PRA 142 Cong Rec 20,459 (1996) Nevertheless, a reference 

to the family cap provision remains, in §103 of the PRA (establishing new §402(a)(7) of title IV of the SSA), 

which permits states to waive program requirements in cases of domestic violence. 110 Stat. at 2112, 2115

17 In fact, dunng Senate consideration of the conference version of the bill. Senator Graham confirmed, for himself 

and for any other members that might not have analyzed the list of excepted programs, that the post-conference 

version of the bill was consistent with the Senate’s earlier Byrd rule objections, defining “ federal means-tested 

public benefit” as applicable only to mandatory programs See infra note 20

18 As a result, we do not believe it to be significant that the final version of the PRA also included exceptions 

for two discretionary programs that did not appear in the Senate version of the PRA from which the broad definition 

of “ federal means-tested public benefit” had been deleted Specifically, the Head Start and Job Training programs 

were only included in the House’s final list of exempted programs, and not the Senate’s, even though they do 

appear in the final version of § 403(c)(2) 110 Stat. at 2266. The inclusion of these two additional exceptions does 

not change our conclusion because there is no reason to believe that the inclusion of exceptions for these particular 

discretionary programs, more than the exceptions for the other discretionary programs, was intended to do more 

than safeguard them from further definitional disagreements In any event, the inclusion in the final bill of two 

additional discretionary programs seems to us a most oblique means for Congress to reinsert a definition of “ federal 

means-tested public benefit” that had previously been struck

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of the CBA, and the House acceded to the Senate. A conference committee cannot 

essentially overrule those decisions by including contrary language in its report. 

To permit this to occur not only would run counter to the canon against construing 

a statute to include terms that Congress had earlier discarded, id., but, even more 

fundamentally, would undermine the rules that were established with such care 

in section 313, which permit a Senator to object to extraneous material that the 

conference might include in the legislation itself, but provide no mechanism for 

correcting the conference’s explanatory statement.19 Finally, subsequent Senate 

colloquy — admittedly an insubstantial grounding for legislative intent if standing 

alone — confirms the understanding that a definition that would have extended 

the term to encompass discretionary programs was deleted because it was outside 

the subject matter scope of the reconciliation process.20

We thus conclude that the legislative record provides strong support for the 

proffered construction of the PRA and that the inconsistencies noted above, while 

giving rise to some ambiguity, are insufficient to rebut the evidence that Congress 

intended to reach only mandatory spending programs. We, accordingly, turn to 

the second step of the Chevron inquiry.

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>9Section 313 permits a Byrd rule objection to be made at various points throughout the legislative process, 

including after the bill has been reported out of conference. 2 U.S.C. § 644(c). Thus, the statute allows for the 

possibility that Congress might attempt to reinsert a deleted provision into a bill during conference, and provides 

the Senate with the opportunity to renew its Byrd rule objection if it insists upon the deletion However, because 

a Byrd rule objection can be raised only against legislative language, not against explanatory statements in the conference report, see § 644(a), allowing a conference repon statement to act as the equivalent of legislative language 

effectively abolishes the statutory mechanism established to ensure the integrity o f the Byrd rule process

20 Specifically, in the debate over the conference report on the Senate floor. Senator Graham sought to confirm 

the exact scope of the term “ federal means-tested public benefit.” After reviewing the history of the Byrd role 

objection and the Parliamentarian’s ruling. Senator Graham engaged Senator Kennedy in the following colloquy. 

Mr. Graham . . . [WJould the Senator agree (hatr when the Senate struck these sections as violating 

the Byrd rule, the Senate’s intent was to prevent the denial of services in appropriated programs such 

as those that provide services to victims of domestic violence and child abuse, the maternal and child 

health block grant, social services block grant, community health centers and migrant health centers?

Mr. Kennedy Yes. Under the Byrd rule, the budget reconciliation process cannot be used to change 

discretionary spending programs. Only mandatory spending is affected.

142 Cong. Rec. 20,975 (1996).

Senator Graham subsequently asked Senator Exon, who was one of the Senate conferees on the bill, whether 

“ the version of the bill recommended in this conference report is consistent with this understanding.” Id Senator 

Exon confirmed that it was. Later during the debate. Senator Graham raised this issue again with another conferee, 

Senator Chafee:

Mr. Graham 1 wonder if my colleague could address one point on this bill. I notice that the term 

“ Federal means-tested public benefit” was defined in previous versions of the bill However, in this 

conference report, no definition is provided.

M r Chafee . . [W]hen the bill was considered in conference, 1 understand that there was an intentional effort to ensure this provision complied with [the] Byrd rule by omitting the definition of that 

particular term.

In other words, then, the term “ Federal means-tested public benefit” — if it is to be in compliance 

with the Byrd rule— does not refer to discretionary programs.

Id at 20,979. . -
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II. Chevron Step II

Under the second step of the Chevron analysis, two questions arise. First, it 

is necessary to determine whether Congress intended for agencies or courts to 

resolve the ambiguity that Congress, either intentionally or inadvertently, failed 

to resolve. See Adams Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990) (“ [a] precondition to deference under Chevron is a congressional delegation of administrative authority” ); see also Johnson v. United States R.R. Retirement Bd., 969 F.2d 

1082, 1088 (D.C. Cir. 1992) (“If agencies are simply interpreting a statute, but 

have not been granted the power to ‘administer’ it, the principle of deference 

applies with less force.” ), cert, denied, 507 U.S. 1029 (1993). Second, if Congress 

intended for agencies to resolve the ambiguity, then it is necessary to determine 

whether the proposed agency interpretation is “ permissible.” Chevron, 467 U.S. 

at 843.21 If Congress intended for the agencies to resolve the interpretive ambiguity, and the agency resolution is permissible, then the agency construction is 

binding.22 See id.

A,

Congress need not expressly authorize agencies to construe ambiguous statutory 

terms in order for courts to be bound by agency constructions. In Chevron itself, 

for example, the Court deferred to an Environmental Protection Agency (“ EPA” ) 

construction of the Clean Air Act, even though no statutory language expressly 

empowered that agency to impose a binding interpretation of the term “ stationary 

source.” The Court simply inferred that Congress must have intended for the EPA, 

as the agency entrusted with administering the Clean Air Act, to resolve the policy 

choices that inhere in the interpretation of ambiguous statutory language. See

Chevron, 467 U.S. at 843. The Court explained that this inference was reasonable 

because agencies generally possess superior expertise and greater political 

accountability than courts. See id. at 865-66.

On the other hand, Congress may impliedly authorize courts to interpret a particular statutory provision, even though an agency has been generally charged with 

administering the statute as a whole. In Adams Fruit Co., for example, the Court 

refused to defer to the Department o f Labor’s resolution of the question whether 

exclusivity provisions in state worker compensation laws trumped a federal private 

right of action under the Migrant and Seasonal Agricultural Worker Protection

21 Although the Court stated in Cardoza-Fonseca that Chevron-deference does not apply to pure questions of 

law, such as the one at issue here, it has subsequently retreated from this position Our memorandum proceeds 

on the assumption that Chevron applies to such questions. Cardoza-Fonseca„ 480 U.S at 454-55 (Scalia, J., concurring)

22 Even if Congress has not entrusted the interpretative function to an agency, courts should still give careful 

consideration to agency constructions that are based on expertise and to which they have consistently adhered. See,

eg ., Atchison, Topeka and Santa Fe Ry. v. Pena, 44 F 3d 437, 445 (7th Cir. 1994) (Easterbrook, J , concurring), 

a j f d sub nom, Brotherhood o f Locomotive Engineers v Atchison, Topeka & Santa Fe Ry , 515 U S 1141 (1995).

32
Act, 29 U.S.C. §§ 1801-1872 (1994 & Supp. I 1995) (“ Worker Protection Act” ). 

Even though the Department was responsible for administering the Worker Protection Act generally, the Court concluded that Congress intended for the judiciary, 

not the agency, to construe the contours of the private right of action that the 

Worker Protection Act created. See Adams Fruit Co., 494 U.S. at 649. The Court 

based that conclusion primarily on the fact that the Department was not required 

to interpret the private right of action provisions as an incident of its general 

administration of the Worker Protection Act, as those provisions established a 

parallel and independent enforcement mechanism. See id. at 649-50.

In our view, the delegation question presented here is more analogous to 

Chevron than to Adams Fruit Co. Although the PRA does not expressly delegate 

general administrative authority to HHS, HUD, or, for that matter, to any other 

particular agency, the PRA effectively amends the statutes that establish the assistance programs over which HHS, HUD and other federal agencies have already 

been delegated administrative authority. Because those agencies possess general 

administrative authority to interpret eligibility criteria set forth in statutes enacted 

prior to the PRA, we believe it to be a fair inference that Congress intended 

for the changes effected by the PRA to be administered in the same manner.

In an analogous context, the Third Circuit deferred to HHS’ construction of 

the Hyde Amendment, even though, as the dissent in that case pointed out, the 

Hyde Amendment does not expressly delegate administrative authority to any 

agency. Compare Elizabeth Blackwell Health Ctr. fo r Women, 61 F.3d at 182, 

with id. at 196 (Nygaard, J., dissenting). The court concluded that HHS’ authority 

to administer the Medicaid statute necessarily included the authority to construe 

legislation that amended the Medicaid statute’s eligibility requirements. Id. at 182; 

see also Fort Wayne Community Schools v. Fort Wayne Educ. A ss’n, 977 F.2d 

358, 365 (7th Cir. 1992) (deferring to Postal Service’s construction of a criminal 

statute on the ground that it was “ intimately connected” to the purposes of the 

statute that Postal Service was charged with administering), cert, denied, 510 U.S. 

826 (1993); Associated Third Class Mail Users v. United States Postal Serv., 600

F.2d 824, 826 n.5 (D.C. Cir.), cert, denied, 444 U.S. 837 (1979) (same).

The case for deference is even stronger here, moreover, because the PRA not 

only amends the eligibility requirements for the programs that these agencies 

administer, but also expressly assigns these agencies the responsibility of 

informing the public of the changes in those eligibility requirements that the PRA 

effects. Section 404(a) of the PRA requires federal agencies that administer assistance programs to provide the public with information about how the PRA changes 

the eligibility requirements for those programs.23 This assignment, we believe, 

impliedly delegates to these agencies the authority to resolve the meaning of the

23 “ Each Federal agency that administers a program to which section 401, 402, or 403 applies shall, directly 

or through the States, post information and provide general notification to the public and to program recipients 

of the changes regarding eligibility for any such program pursuant to this subtitle ” 110 Stat. at 2267

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phrase “ federal means-tested public benefit” : agencies must first interpret the 

meaning of the term “ federal means-tested public benefit” in order to comply 

with section 404(a)’s mandate to inform the public of the PRA’s impact on eligibility requirements. Only by determining whether that term applies to both mandatory and discretionary assistance programs (among other questions of application) 

will agencies be able to determine who is eligible for the programs that they 

already administer pursuant to separate statutory delegations. Section 404(a)’s 

notification requirement serves a useful function, moreover, only to the extent 

that the agencies are able to provide accurate information about the eligibility 

changes that the PRA mandates. If courts are free to reject reasonable agency 

interpretations of that term, then agencies will be forced to risk providing inaccurate eligibility information or to refrain from providing complete eligibility 

information altogether. Because neither result seems consistent with the purpose 

behind section 404(a), it is proper to infer that Congress intended for the agencies 

to provide the authoritative construction of the term “ federal means-tested public 

benefit” when it assigned them the notification task set forth in section 404(a).

In light of the agencies’ statutorily assigned responsibilities, the agencies cannot 

fairly be viewed as “ trying to ‘bootstrap’ [themselves] into an area in which [they 

have] no jurisdiction” in seeking deference for their construction of the term “ federal means-tested public benefit.” Wagner Seed Co. v. Bush, 946 F.2d 918, 923 

(D.C. Cir. 1991), cert, denied, 503 U.S. 970 (1992) (citation omitted). Rather, 

they are offering an interpretation that results from the “ intimate connection” 

between the purposes of the statutes that the agencies already administer and those 

of the PRA generally, Fort Wayne Community Schools, 977 F.2d at 365, and that 

arises in connection with the “ special duty” that section 404(a) of the PRA 

assigns them. See FLRA v. Department o f Treasury, 884 F.2d 1446, 1451 (D.C. 

Cir. 1989), cert, denied, 493 U.S. 1055 (1990).

We are aware of those cases that assert that courts should not defer to statutes 

that are “ general” in nature or that are subject to interpretation by more than 

one agency. See, e.g., Johnson v. United States R.R. Retirement Bd., 969 F.2d 

at 1088 (citing cases). We do not believe that this rule of construction should 

apply here. The rule has been invoked primarily in cases in which agencies seek 

Chevron deference for their construction of statutes that have been expressly 

entrusted to other agencies for administration, see id.; Cheney R.R. Co. v. Railroad

Retirement Bd., 50 F.3d 1073, 1073-74 (D.C. Cir. 1995), that are designed to 

ensure that agencies remain publicly accountable or proceed in a fair manner, 

see, e.g., Professional Reactor Operator Soc’y v. United States Nuclear Regulatory

Comm’n, 939 F.2d 1047, 1051 (D.C. Cir. 1991); see Air North Am. v. Department

o f Transp., 937 F.2d 1427, 1436 (9th Cir. 1991), or that are not intimately connected to the mission of the agency that seeks deference. See, e.g., Professional

34
Airways Sys. Specialists v. FLRA, 809 F.2d 855, 857 n.6 (D.C. Cir. 1987). The 

results in these cases are, therefore, best explained as particular applications of 

the justifiable presumption that Congress does not intend for courts to be bound 

by agency constructions that are beyond agency expertise, see, e.g., Colorado

Nurses Ass'n v. FLRA, 851 F.2d 1486, 1488 (D.C. Cir. 1988), or that concern 

provisions that are designed to ensure agencies proceed in a fair and accountable 

manner, see Air North Am. -v. Department o f Transp., 937 F.2d at 1436. These 

cases do not establish, in our view, a general presumption in favor of judicial 

resolution of all statutory ambiguities that confront more than a single agency.

Indeed, Chevron's emphasis on the greater political accountability of agencies 

counsels against a rule of construction that would afford judges the last word 

on the meaning of any statute that does not authorize a single agency to administer 

it. See Chevron, 467 U.S. at 865-66. Where, as here, a statute assigns a group 

of agencies a particular task that is related to the duties that the agencies already 

have been assigned by their governing statutes, Congress may be presumed to 

have intended for these agencies to resolve any ambiguities that may arise. That 

the PRA does not assign any particular agency primary interpretive responsibility 

does not change the analysis. Congress may have intended for the courts to resolve 

the meaning of the term “ federal means-tested public benefit” in the event of 

unresolved interpretive conflicts among the agencies identified by section 404. 

There is no reason to suppose, however, that Congress intended for unelected 

judges to countermand a unanimous resolution of the policy question by the agencies closest to it. Cf. American Fed’n o f Gov’t Employees v. FLRA, 2 F.3d 6, 

10 (2d Cir. 1993) (“ [W]hen two agencies, each examining statutes they are 

charged with administering, agree as to the interplay of the statutes, there is no 

more reason to mistrust their congruent resolutions than there is to mistrust action 

taken by a single agency.” ); see also Salleh v. Christopher, 85 F.3d 689 (D.C. 

Cir. 1996) (suggesting that joint agency interpretations may deserve deference); 

c f Lieberman v. FTC, 111 F.2d 32, 37 (2d Cir. 1985) (declining to defer to joint 

agency construction but noting that Congress may delegate “ dual lawmaking 

authority” ). So long as the agencies identified by section 404(a) concur in their 

interpretation of the term “ federal means-tested public benefit,” therefore, we 

believe that courts would be bound to accord that interpretation Chevron deference.

Finally, we do not believe that the deference that the agencies receive under 

Chevron should turn on whether their construction of the term “ federal meanstested public benefit” would be deemed an “ interpretative” or “ legislative” rule 

under the Administrative Procedure Act. We agree with those courts that have 

concluded that Chevron deference turns solely on whether the agency’s interpretation may fairly be understood to be one for which Congress intended judicial 

deference to apply, see, e.g., Elizabeth Blackwell Health Ctr. fo r Women, 61 F.3d 

at 182; id. at 190-96 (Nygaard J., dissenting) (reviewing conflicting caselaw);

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Kelley v. EPA, 15 F.3d 1100, 1108 (D.C. Cir. 1994), cert, denied, 513 U.S. 1110

(1995); see generally Robert A. Anthony, Which Agency Interpretations Should

Bind Citizens and the Courts?, 1 Yale J. on Reg. 1 (1990), and not on whether 

the proposed construction is “ interpretative” or “ legislative” in nature.24 The 

latter determination, in our view, relates only to the procedural question whether 

the agency’s rule may be promulgated outside the process of notice and comment 

rulemaking. That determination should have no bearing on the entirely separate 

question whether Congress intends for courts or agencies to resolve the interpretive ambiguity at issue.25

B.

Given that Congress impliedly delegated to the agencies the responsibility for 

resolving the interpretive question raised by the PRA’s use of the phrase “ federal 

means-tested public benefit,” the only remaining issue under step two of the 

Chevron analysis is whether the answer provided by the agencies “ is based on 

a permissible construction of the statute.” Chevron, 467 U.S. at 843. If it is, that 

construction is binding. Id.

A definition of the term “federal means-tested public benefit” that includes 

only mandatory assistance programs is manifestly “ permissible.” The second step 

of the Chevron analysis arises only if Congress failed to resolve whether the term 

“ federal means-tested public benefit” applies to discretionary assistance programs. The conclusion that Congress left that question open is possible only if 

the phrase admits of the proffered construction. The same reasons that led us 

to conclude that there is strong evidence to support the HHS and HUD proffered 

definition of “ federal means-tested public benefit,” see infra pp. 22-31, therefore, 

also show that the proffered definition is a “ permissible” one. Moreover, HHS 

and HUD assert that their reading “ best balances our Departments’ other statutory 

obligations with Congressional goals embodied in the [PRA].” Rabb/Diaz Letter 

at 1. Under Chevron, agency constructions based on reasonable assessments of 

statutory purposes are entitled to deference. See Chevron, 467 U.S. at 858.

24 The Supreme Court has stated in post -Chevron dicta that interpretive rules are entitled to less weight than 

“ norms that derive from the exercise of the Secretary’s delegated lawmaking powers.” See Martin v. Occupational

Safety & Health Review Comm'n, 499 U S 144, 157 (1991) More recently, however, the Court has intimated that 

interpretive rules may be entitled to Chevron-style deference See Reno v Koray, 515 U S 50, 60-61 (1995).

25 O f course, there are clearly some instances in which informal agency interpretations may be presumed to be 

undeserving of full Chevron deference There are sound reasons, for example, to presume that Congress does not 

intend for courts to defer to agency litigating positions See Bowen v. Georgetown Umv H o s p 488 U S. 204, 212-

13 (1988) Here, however, the agencies proffer their construction outside the litigation context. Moreover, we note 

that the very existence of the Bowen rule, which precludes the application of Chevron deference to agency litigating 

positions, would be unnecessary if all “ interpretative” rules— including those fashioned outside the litigation process— were already precluded from receiving such deference

36
We accordingly conclude that the HHS/HUD proffered definition constitutes 

a permissible and legally binding construction of the PRA.

DAWN E. JOHNSEN 

Acting Assistant Attorney General

RANDOLPH D. MOSS 

Deputy Assistant Attorney General

Office o f Legal Counsel

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CONCLUSION

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