source: Caselaw Access Project

author: Me. Chief Justice Buegee

license: Public Domain

text:
    SCHEUER, ADMINISTRATRIX v. RHODES, GOVERNOR OF OHIO, et al.
    No. 72-914.
    Argued December 4, 1973
    Decided April 17, 1974

      Burger, C. J., delivered the opinion of the Court, in which all Members joined except Douglas, J., who took no part in the decision of the cases. ,. •'

      Michael E.. Geltner argued the cause for petitioner in, No. 72-914. With him on the briefs were Leonard J. Schwartz, Melvin L. Wulf, Joel M. Gora, Nelson G. Karl, Niki Z. Schwartz, wad Walter S. Haffner. Steven A. Sindell argued the cause for petitioners in No. 72-1318. With him on the brief were Joseph M. Sindell and Joseph Kelner.

      Charles E. Brown argued the cause for respondents in No. 72-914. - With him on the. brief were Robert F. Howarth, Jr., Delmar Christensen, and C. D. Lambros. R. Brooke Alloway argued the cause for respondents in No. 72-1318. 'With him on the brief was John M. McElroy.

      Together 'with No. 72-1318, Krause, Administrator, et al. v. Rhodes, Governor of Ohio, et al., also oh certiorari to the same court.

       Briefs of amici curiae urging reversal in both cases were filed by Mario G. Obledo and Sanford Jay Rosen for the Mexican American Legal Defense and Educational Fund, and by David E. Engdahl for the National Council of the Churches of Christ in the U. S. A. et al. Carl J. Character filed a brief for the National Bar Assn, as amicus curiae urging reversal in No. 72-1318.

   Me. Chief Justice Buegee

delivered the opinion of the Court.

We granted certiorari in these cases to resolve whether the. District Court correctly dismissed civil damage actions, brought under 42 U. S. C. § 1983, on the ground that these actions were, as a matter of law, against the State of Ohio, and, hence barred by the Eleventh Amendment to -the Constitution and, alternatively, that the actions were against state officials who were immune from liability for the acts alleged in the complaints. These cases arise out of the same period of alleged civil disorder on the campus of Kent State University in Ohio during May 1970 which was before us, in another context, in Gilligan v. Morgan, 413 U. S. 1 (1973).

In these cases the personal representatives of the estates of three students who died in that episode seek damages against the Governor, the Adjutant General, and his assistant, various named and unnamed officers and enlisted members of the Ohio National Guard, and the president of Kent State University. The complaints in both cases allege a cause of action under the Civil Rights Act of 1871, 17 Stat. 13, now 42 U. S. C. § 1983. Petitioner Scheuer also, alleges a cause of action under. Ohio law on the theory of pendent jurisdiction. Petitioners Krause and Miller make a similar claim, asserting jurisdiction on the basis of diversity- of citizenship.

The District Court dismissed the complaints for lack of jurisdiction over the subject matter on the theory that these actions, although in form against the named indi-, viduals, were, in substance and effect, against the State of Ohio and thus barred f)y the Eleventh Amendment. The Court of Appeals affirmed the action of che District Court, agreeing that the suit was in legal effect one against the State of Ohio and, alternatively, that the common-law doctrine of executive immunity barred action against the state officials who are respondents here. 471 F. 2d 430 (1972). We are confronted with the narrow threshold question whether the District Court properly dismissed the complaints. We hold that dismissal was inappropriate at this stage of the litigation and accordingly reverse the judgments and remand for further proceedings. We intimate no view on the merits of the allegations since there is no evidence before us at this stage.

I

The complaints in these cases are not identical but their. thrust is essentially the same. In essence, the defendants are alleged to have “intentionally, recklessly, willfully and wantonly” caused an unnecessary deployment of the Ohio National Guard on the -Kent State campus and, in the same manner, ordered the Guard members to perform allegedly illegal actions which resulted in the death of plaintiffs' decedents. Both complaints allege that the action was taken “under color of state law” and that it deprived the decedents of their lives and rights without due process of law. Fairly read, the complaints allege that each of the named defendants, in undertaking such actions, acted either outside the scope of his respective office or, if within the scope, acted in an arbitrary manner, grossly abusing the lawful powers of office.

The complaints were dismissed by the District Court for lack of jurisdiction without the filing of an answer to any of the complaints. The only pertinent documentation before the court in addition to the complaints were two proclamations issued by the respondent Governor. The first proclamation ordered the -Guard to duty to protect against violence arising from wildcat strikes in the trucking industry; the other recited an account of the eonditions-prevailing- at Kent State University at that time. In dismissing these complaints for want of subject matter jurisdiction at that early stage, the District Court held, as we noted earlier, that the defendants were being sued in their official and representative capacities and that the actions were therefore in effect against the State of Ohio. The primary question presented is whether the District Court acted prematurely and hence erroneously in dismissing the complaints on the stated ground, thus precluding any opportunity for the plaintiffs by subsequent proof to establish a claim.

When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test. Moreover, it is well established that, in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.

“In .appraising the sufficiency of the complaint we follow, of course, the accepted rule that a com-. plaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U. S. 41, 45-46 (1957) (footnote omitted).

See also Gardner v. Toilet Goods Assn., 387 U. S. 167, 172 (1967).

II

The Eleventh Amendment to the Constitution of the United States provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State . . . .” It is well-established that the Amendment bars suits not only against the State when it is the named party but also when it is the party in fact’. Edelman v. Jordan, 415 U. S. 651 (1974); Poindexter v. Greenhow, 114 U. S. 270, 287 (1885); Cunningham v. Macon & Brunswick R. Co., 109 U. S. 446 (1883). Its applicability “is to be determined not by the mere names of the titular parties but by the essential nature and effect of the proceeding, as it appears from the entire record.” Ex parte New York, 256 U. S, 490, 500 (1921).

However, since Ex parte Young, 209 U. S. 123 (1908), it has been settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law. Ex parte Young teaches that when a staJe officer acts under a state law in a manner violative of the Federal Constitution, he

“comes into conflict with the superior authoiity of. that Constitution, and he is in that case st’ipped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility t,o the supreme authority of the United States.” Id., at 159-160. (Emphasis supplied.)

Ex parte Young, like Sterling v. Constantin, 287 U. S. 378 (1932), involved a question, of the federal courts’ injunctive power, not, as here, a claim for monetary damages. While it is clear that the doctrine of Ex parte Young is of no aid to a plaintiff seeking damages from the public treasury, Edelman v. Jordan, supra; Kennecott Copper Corp. v. State Tax Comm’n, 327 U. S. 573 (1946); Ford Motor Co. v. Dept. of Treasury, 323 U. S. 459 (1945); Great Northern Life Insurance Co. v. Read, 322 U. S. 47 (1944), damages against individual defendants are a permissible remedy in some circumstances notwithstanding the fact that they hold public office. Myers v. Anderson, 238 U. S. 368 (1915). See generally Monroe v. Pape, 365 U. S. 167 (1961); Moor v. County of Alameda, 411 U. S. 693 (1973). In some situations a damage remedy can be as effective a redress for the infringement of a constitutional right as injunctive relief might be in another.

Analyzing the complaints in light of these precedents, we see that petitioners allege facts that demonstrate they are seeking to impose individual and personal liability on the named defendants for what they claim — but have not yet established by proof — was a deprivation of federal rights by these defendants under color of state law. Whatever the plaintiffs may or may not be able to establish as to the merits of their allegations, their claims, as stated in the complaints, given the favorable reading required by the Federal Rules of Civil Procedure, are not barred by the Eleventh Amendment. Consequently, the District Court erred in dismissing the complaints for lack of jurisdiction.

HI

The Court of Appeals relied upon the existence of an absolute “executive immunity” as an alternative ground for sustaining the dismissal of the complaints by the District Court. If the immunity of a member of the executive branch is absolute and comprehensive as to all acts allegedly performed within the scope of official duty, the Court of Appeals was correct; if, on the other hand, the immunity is not absolute but rather one that is qualified or limited, an executive officer may or may not be subject to liability depending on . all the circumstances that may be revealed by evidence. The concept of the immunity of government officers from personal liability springs from the same root considerations that generated the doctrine of sovereign immunity. While the latter doctrine — that the “King can do no wrong” — did not protect all government officers from personal liability, the common law soon recognized the necessity of permitting officials to perform their official functions free from the threat of suits for personal liability. This official immunity apparently rested, in its genesis, on two mutually dependent rationales: (1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the . judgment required by the public good.

In this country, the development of the law of immunity for public officials has been the product of constitutional provision as well as legislative and judicial processes. The Federal Constitution grants absolute immunity to Members of both Houses of the Congress with respect to any spéech, debate, vote, report, or action .done in session. Art. I, § 6. See Gravel v. United States, 408 U. S. 606 (1972); United States v. Brewster, 408 U. S. 501 (1972); and Kilbourn v. Thompson, 103 U. S. 168 (1881). This provision was intended to secure for the Legislative Branch of the Government the freedom from executive and judicial encroachment which had been secured in England in the Bill of Rights of 1689 and carried to the original Colonies. In United States v. Johnson, 383 U. S. 169, 182 (1966), Mr. Justice Harlan noted:

“There is little doubt that the instigation of criminal charges against critical or disfavored legislators by the executive in a judicial forum was the chief fear prompting the long struggle for parliamentary privilege in England and, in the context of the American system of separation of powers, is the predominate thrust of the Speech or Debate Clause.”

Immunity for the other two branches — long a creature of the common law — remained committed to the common law. See, e. g., Spalding v. Vilas, 161 U. S. 483, 498-499 (1896).

Although the development of the general concept of immunity, and the mutations which the underlying rationale has undergone in its application to various positions are not matters of immediate concern here, it is important to note, even at the outset, that one policy, consideration seems to pervade the analysis: the public interest requires decisions and action to enforce laws for the protection of the public. . Mr. Justice Jackson expressed this general proposition succinctly, stating “it is not a tort for government to govern.” Dalehite v. United States, 346 U. S. 15, 57 (1953) (dissenting opinion). Public officials, whether governors,' mayors or police, legislators or judges, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity — absolute or qualified — for their acts, is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all. In Barr v. Matteo, 360 U. S. 564, 572-573 (1959), the Court observed, in the somewhat parallel context of the privilege of public officers from defamation actions: “The privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government.” See also Spalding v. Vilas, 161 U. S., at 498-499.

For present purposes we need determine only whether there is an absolute immunity, as the Court of Appeals determined, governing the specific allegations of the complaint against the chief executive officer of a State, the senior and subordinate officers and enlisted personnel of that State’s National Guard, and the president of a state-controlled university. If the immunity is qualified, not absolute, the scope -of that immunity will necessarily be related to. facts as yet not established either by affidavits, admissions, or a trial record. Final resolution of this question must take into account the functions, and responsibilities of these -particular defendants in their capacities as officers of the state government, as well as the purposes of 42 U. S. C. § 1983. In neither of these inquiries do we write, on a clean slate. It can hardly be argued, at this late date, that under no circumstances can the officers of state government be subject to liability under this statute. In Monroe v. Pape, supra, Mr. Justice Douglas, writing for the Court, held that the section in question was meant “to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official’s abuse of hi's position.” 365 U. S., at 172. Through the Civil Rights statutes, Congress intended “to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.” Id., at 171-172.

Since the statute relied on thus included within its scope the “ '[mjisuse of power, possessed .by virtue of state law and made possible only because the wrongdoer is clothed with the authority of. state law,’ ” id., at 184 (quoting United States v. Classic, 313 U. S. 299, 326 (1941)), government officials, as a class, could not be totally exempt, by virtue of some absolute immunity, from liability under its terms. Indeed, as the Court also indicated in Monroe v. Pape, supra, the legislative history indicates that there is no absolute immunity.- Soon after Monroe v. Pape, Mr. Chief Justice Warren noted in Pierson v. Ray, 386 U. S. 547 (1967), that the “legislative record [of § 1983] gives no clear indication that Congress meant to abolish wholesale all common-law immunities,” id., at 554. The Court had previously recognized that the Civil Rights Act of 1871 does not create civil liability for legislative acts by legislators “in a., field where legislators traditionally have power to act.” Tenney v. Brandhove, 341 U. S. 367. 379 (1951). Noting that “[t]he privilege of legislators to be free from arrest or civil process for what they do or say in legislative proceedings has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries,” id., at 372, the Court concluded that it was highly improbable that “Congress — itself a staunch advocate of legislative freedom — would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language . . .” of this statute. Id., at 376.

In similar fashion, Pierson v. Ray, supra, examined the scope of judicial immunity under this statute. Noting that the record contained no “proof or specific allegation,” 386 U. S., at 553, that the trial judge-had “played any role i:i these arrests, and convictions other than to adjudge petitioners guilty when their cases came before his court,” ibid., the Court concluded that, had the Congress intended to abolish the common-law “immunity of judges for acts within the judicial role,” id., at 554, it would have done so specifically. Á judge’s

“errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.” Ibid.

The Pierson Court was also confronted with whether immunity was available to that segment of the executive branch of a state government that is most frequently and intimately involved in day-to-day contacts with the citizenry and, hence, most frequently exposed to situations which can give rise to claims under § 1983 — the local police officer. Mr. Chief Justice Warren, speaking for the Court, noted that the police officers

“did not defend on the theory that they believed in good faith that it was constitutional to árrest the ministers solely for using the [‘white only’] waiting room. Rather, they claimed and attempted to prove that . . . [they arrested them] solely for the purpose of preventing violence.. They testified, in contradiction to the ministers, that a crowd gathered and ■that imminent violence was likely. If the jury believed the testimony of the officers and disbelieved that of the ministers, and if the jury found that the officers reasonably believed in good faith that the arrest was constitutional, then a verdict for the officers would follow even though the arrest was in fact [without probable cause and] unconstitutional.” Id., at 557.

The Court noted that the “common law has never granted police officers an absolute and unqualified immunity,” id., at 555, but that “the prevailing view in this country [is that] a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved,” ibid.; the Court went on to observe that a “policeman's lot is not so unhappy that he must choose between. being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.” Ibid. The Court then held that

“the defense of good faith and probable cause, which the Court of Appeals found available to the officers ■in the common-law action for false arrest and imprisonment, is also available to them, in the action .under § 1983.” Id., at 557.

When a court evaluates police conduct relating to an arrest its guideline is “good faith and probable cause.” Ibid. In the case of higher officers of the executive branch, however, the inquiry is far more complex since the range of decisions and choices — whether the formulation of policy, of legislation, of budgets, or of day-to-day de-. cisions — is virtually infinite. In common with police officers, however, officials with a broad range of duties and authority must often act swiftly and firmly at the risk that action deferred will be futile or constitute virtual abdication of office. Like legislators and judges, these officers are entitled to rely on traditional sources for the factual information on which they decide and act. When a condition of civil disorder in fact exists, there is obvious need for prompt action, and decisions must be made in reliance on factual information supplied by others. While both federal and state laws plainly contemplate the use of force when the necessity arises, the decision to invoke military power has traditionally been viewed with suspicion and skepticism since it often involves the temporary suspension of some of our most cherished rights — government by elected civilian leaders, freedom of expression, of assembly, and of association. Decisions in such situations are more likely than not to arise in an atmosphere of confusion, ambiguity, and swiftly moving events and when, by the very existence of some degree of civil disorder, there is often no consensus as to the appropriate remedy. In short, since the options which a chief executive and his principal subordinates must consider are far broader and far more subtle than those made by officials with less responsibility, the range of discretion must be comparably broad. In a context other than a ~§ 1983 suit, Mr. Justice Harlan articulated these considerations in Barr v. Matteo, supra:

“To be sure, the occasions upon which the acts of the head of an executive department will be protected by the privilege are doubtless far broader than in the case of an officer with less sweeping functions. But that is because the higher the post, the broader the range of responsibilities and duties, and the wider the scope of discretion, it entails. It is not the title of his office but the duties with which the particular officer sought to be made to respond in damages is entrusted — the relation of the act complained of to 'matters committed by law to his control or supervision,’ Spalding v. Vilas, supra, at 498 — which must provide the guide in delineating the scope ol the rule which clothes the official acts of the executive officer with immunity from civil defamation suits.” 360 U. S. at 573-574.

These considerations suggest that, in varying scope, a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and -all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with'good-faith belief, that affords a basis for. qualified immunity of executive officers for acts performed in the. .course of official conduct. Mr. Justice Holmes spoke of this, stating:

“No doubt there are cases where the expert on the spot may be called upon to justify his conduct later in'court, notwithstanding the fact that he had sole command at the time and acted to the best of his knowledge. That is the position of the captain of a ship. But even in that casé great weight is given to his determination and the matter is to be judged on the fact* as they appeared then and not merely in the light of the event.” Moyer v. Peabody, 212 U. S. 78, 85 (1909). (Citations omitted.)

Under the criteria developed by precedents of this Court, § 1983 would be drained of meaning wTere we to hold that the acts of a governor or other high executive officer have “the quality of a supreme and unchangeable edict, overriding all conflicting rights of property and unreviewable through the judicial power of the Federal Government.” Sterling v. Constantin, 287 U. S., at 397. In Sterling, Mr. Chief Justice Hughes put it in these terms:

“If this extreme position could be deemed to be well taken, it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would' be but impotent phrases, the futility of which the State may at any time disclose by the simple'process of transferring •powers of legislation to the Governor to be exercised by him, beyond control, upon his assertion of necessity. Under our system, of government, such a con* elusion is obviously untenable. There is no such avenue of escape from the .'paramount authority of the Federal Constitution. When there is a substantial showing that the exertion of state power has overridden private rights secured by that Constitution, the subject is necessarily one for judicial inquiry in an appropriate proceeding directed against the individuals charged • with the transgression.” Id., at 397-398.

Gilligan v. Morgan, by no means indicates a contrary result. Indeed, there we specifically • noted that we neither held nor implied “that the conduct of the National Guard is always beyond judicial review or that there may not be accountability in a judicial forum for violations of law or for specific unlawful conduct by military personnel, whether by way of damages or injunctive relief.” 413 U. S., at 11-12. (Footnote omitted.) See generally Laird v. Tatum, 408 U. S. 1, 15-16 (1972); Duncan v. Kahanamoku, 327 U. S. 304 (1946).

IV

These cases, in their present posture, present no occasion for a definitive exploration of the scope of immunity available to state executive officials nor, because of the absence of a factual record, do they permit a determination as to the applicability of the foregoing principles to the respondents here. The District Court acted before answers were filed and without any evidence other than .the copies of the proclamations issued by respondent Rhodes and brief affidavits of the Adjutant General and his assistant. In dismissing the complaints, the District Court and the Court of Appeals erroneously accepted as a fact the good faith of the Governor, and took judicial notice that'“mob rule-existed at Kent State University.” There was no opportunity afforded petitioners to contest the facts assumed in that conclusion. There was no evidence before the courts from which such a finding of good faith could be properly made and, in the circumstances of these cases, such a dispositive conclusion could not be judicially noticed. .We can readily grant that a declaration of emergency by the chief executive of a State is entitled to great weight but it is not conclusive. Sterling v. Constantin, supra.

The documents properly before the District Court at this early pleading stage specifically placed in issue whether the Governor and his subordinate officers were acting within the scope of their duties under the Constitution and laws of Ohio; whether they acted within the range of discretion permitted the holders of such office under Ohio law and whether they acted in good faith both in proclaiming an emergency and as to the actions taken to cope with the emergency so declared. Similarly, the complaints place directly in issue whether the lesser officers and enlisted personnel of the Guard acted in good-faith obedience to the orders of their superiors. Further proceedings, either, by way of summary judgment or by trial on the merits, are required. The complaining parties are entitled to be heard more fully than is possible on a motion to dismiss a complaint.

We intimate no evaluation whatever as to the merits of the petitioners’ claims or as to whether it will be possible to support them by proof. We hold only that, on the allegations of their respective complaints, they were entitled to have them judicially resolved.

The judgments of the Court of Appeals are reversed and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Douglas took no part in the decision of these cases.

       413 U. S. 919 (1973).

       The Krause complaint states that the plaintiff is a citizen of Pennsylvania and expressly invokes federal diversity jurisdiction under 28 U. S. C. § 1332. The Miller complaint, states that the plaintiff is a citizen of New York. While the .complaint does not specifically-refer to jurisdiction under 28 U. S. C. § 1332, it alleges facts "which clearly support diversity jurisdiction. App. in No. 72-1318, p. 85. See Fed. Rule Civ. Proc. 8 (a)(1).

       In the Krause case, the Adjutant General and his assistant also filed brief affidavits.- These seem basically directed to .the motion for a change of venue and, in any event, make no substantial contribution to the jurisdictional or immunity questions.

       In England legislative immunity was secured after a long struggle, by the Bill of Rights of 1689: “That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament,” 1 W. & M., Sess. 2, c. 2. See Stockdale v. Hansard, 9 Ad. & E. 1, 113— 114, 112 Eng. Rep. 1112, 1155-1156 (Q. B. 1839). The English experience, of course, guided the drafters of our “Speech or Debate” Clause. See Tenney v. Brandhove, 341 U. S. 367, 372-375 (1951); United States v. Johnson, 383 U. S. 169, 177-178, 181 (1966); United States v. Brewster, 408 U. S. 501 (1972).
      In regard. to judicial immunity, Holdsworth notes: “Ir. the case of courts of record ... it was held,- certainly as early as Edward Ill’s reign, that a litigant could not go behind the record, in order to make a judge civilly or' criminally liable for an abuse of his jurisdiction.” 6 W. Holdsworth, A History of English Law 235 (1927). The modern concept owes much to the elaboiation and restatementnrf Coke and other judges of the sixteenth and early seventeenth centuries. Id., at 234 et seq. See Floyd v. Barker, 12 Co.. Rep. 23, 77 Eng. Rep. 1305 (K. B. 1607). The immunity of the Crown has traditionally been of- a more limited nature. Officers of the Crown were at first insulated from responsibility since the King could claim the act as his own. This absolute insulation was gradually eroded. Statute of Westminster I, 3 Edw. 1, c. 24 (1275) (repealed); Statute of Westminster II, 13 Edw. 1, c. 13 (1285) (repealed). The development of liability) especially during the times of the Tudors and Stuarts, was slow; see, e. g., Public Officers Protection Act, 7 Jac. 1, c. 5 (1609) (repealed). With the accession of William and Mary, the liability of officers saw what Jaffe has. termed “a most remarkable and significant extension” in Ashby v. White, 1 Bro. P. C. 62, 1 Eng. Rep. 417 (H. L. 1704), reversing 6 Mod. 45, 87 Eng. Rep. 808 (Q. B. 1703). Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 14 (1963); A. Dicey, The Law of the Constitution 193-194 (10th ed. 1959) (footnotes omitted). See generally Barr v. Matteo, 360 U. S. 564 (1959). Good-faith performance of a discretionary duty has remained, it seems, a defense. See Jaffe, Suits Against Governments and Officers: Damage Actions, 77 Harv. L. Rev. 209, 216 (1963). See also Spalding v. Vilas, 161 U. S. 483, 493 et seq. (1896).

       Jaffe, Suits Against Governments and Officers: Damage Actions, 77 Harv. L. Rev., at 223;

       Mr. Justice Frankfurter noted in Tenney v. Brandhove, 341 U. S., at 373: “The provision' in . the United States Constitution was a- reflection of political principles already firmly established in the States. Three State Constitutions adopted before the Federal Constitution specifically protected the privilege.” See Coffin v. Coffin, 4 Mass. 1, 27 (1808). See also Kilbourn v. Thompson, 103 U. S. 168, 202 (1881).

       For example, in Floyd v. Barker, supra, Coke emphasized that judges “are only to make an account to God and the King” since a contrary rule “would tend to the scandal and subversion of all justice. And those who are the most sincere, would not be free from continual calumniations . . . .” 12 Co. Rep., at 25, 77 Eng. Rep., at 1307. See also Yaselli v. Goff, 12 F. 2d 396, 399 (CA2 1926), aff’d per curiam, 275 U. S. 503 (1927). In Spalding v. Vilas, 161 U. S., at 498, the Court noted:
      “In exercising the functions of his office, the head of an Executive Department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government, if he were subjected to any such restraint.”

       In Spalding v. Vilas, 161 U. S., at 498; the Court, after' discussing the early principles of judicial immunity in the country, cf. Randall v. Brigham, 7 Wall. 523, 535 (1869), Bradley v. Fisher, 13 Wall. 335 (1872), and Yates v. Lansing, 5 Johns. 282 (N. Y. 1810), noted the similarity in the controlling policy considerations in the case of high-echelon executive officers and judges:
      “We are of opinion that the same general considerations of public policy and convenience which demand for judges of courts of superior jurisdiction immunity from civil suits for damages. arising from acts done by them in..the course of,the performance of their judicial functions, apply to a large extent to official communications made by heads of Executive Departments when engaged in the discharge of duties imposed upon them by law.i The interests of the people require that due protection be accorded to them in respect of their official acts.”


author: Mr. Justice Powell

text:
    SHEA, EXECUTIVE DIRECTOR, DEPARTMENT OF SOCIAL SERVICES OF COLORADO, et al. v. VIALPANDO
    No. 72-1513.
    Argued February 26, 1974
    Decided April 23, 1974.

      Powell, J., delivered the opinion for a unanimous Court.

      Douglas D. Doane and Charles B. Lennahan, Special Assistant Attorneys General of Colorado, argued the cause for petitioners. With them on the brief were John P. Moore, Attorney General, John E. Bush, Deputy Attorney General, and Norman A. Palermo.

      Tom W. Armour argued the cause for ■ respondent. With him on the brief were James W. Kin, Steven J. Cole, and Henry A. Freedman. ,
   Mr. Justice Powell

delivered the opinion of the Court.

In administering the Aid to Families with Dependent Children (AFDC) program of the Social Security Act of 1935, as amended (Act), 42 U. S. C. § 601 et seq., state agencies are required by § 402 (a) (7) of the Act, 81 Stat. 881, 42 U. S. C. §602 (a)(7), to “take into consideration . . . any expenses reasonably attributable to the earning of . . . income.” Such employment-related expenses are deducted from an AFDC applicant's- income in the process of determining eligibility for assistance. We granted certiorari, 414 U. S. 999 (1973), to determine whether, in light of § 402 (a)(7), a State may adopt a standardized allowance for expenses, attributable to the earning of income which does not alloxan applicant to deduct expenses that exceed.the standard',-. We hold that, it may not.

I

The AFDC.program is designed to provide financial assistance to needy dependent children and the parents or relatives who live with, and care for them. A principal purpose of the program, as indicated by 42 U. S. C. § 601, is to help such parents and relatives “to attain or retain capability for the maximum self-support and personal'independence consistent with the maintenance of continuing parental care and protection The program “is based on a scheme of cooperative federalism,” King v. Smith, 392 U. S. 309, 316 (1968). It is financed in large measure by the Federal Government on a matching-fund basis, and participating States, must submit AFDC plans in conformity with the Act and the regulations promulgated thereunder by the Department of Health, Education, and Welfare (HEW). The program is, however, administered by the States, which are given broad discretion in determining both the standard of need and the level of benefits. See Jefferson v. Hackney, 406 U. S. 535, 541 (1972); Rosado v. Wyman, 397 U. S. 397, 408-409 (1970); Dandridge v. Williams, 397 U. S. 471, 478 (1970); King v. Smith, supra, at 318-319.

Under HEW regulations -all AFDC plans .must specify a statewide standard of need, which is the amount deemed necessary by the State to maintain a hypothetical family at a subsistence level. Both eligibility for AFDC assistance and the amount of benefits to be granted an individual applicant are based on a comparison of the State’s standard of need with the income and resources available to that applicant. 45 CFR § 233.20 (a)(2)(i). The “income and resources” attributable to an applicant, defined in 45 CFR §§ 233.20 (a)/6) (iii-viii), consist generally of “only such net income as is. actually availably for current use on a regular basis-. . . and only currently .available resources.” 45 CFR § 233.20 (a) (3) (ii)(c). See also HEW, Simplified Methods for Consideration of Income and Resources (1965). In determining net income, any expenses reasonably attributable to the earning of income are deducted from gross income. 42 U. S. C. § 602 (a)(7). If, taking into account, these deductions and other, deductions not at issue in the instant case, the net amount of “earned income” is less than the predetermined statewide standard of need, the applicant is eligible for participation in the program anid the ^mount of the'assistance payments will be based upon that difference; 45 CFR §§ 233.20 (a) (3) (ii) (a) and (c).

Prior to May 1970, Colorado’s AFDC regulations permitted the deduction from income of all expenses reasonably attributable tó employment, including but not limited to the actual cost of transportation, if “essential to retain employment.” Child care expenses and mandatory payroll deductions were also treated as employment-related expenses, and all such expenses were computed on an individualized basis. In May 1970, this policy was changed by the establishment of a maximum transportation work-expense allowance of either $30 per -month, if the use of a car was essential, or the actual expense of public transportation. Effective July 1, 1970, the Colorado work-expense allowance regulation was again amended to provide that in áddition to mandatory payroll, deductions and child care expenses: '

“For employment expenses such aá\transportation, special clothing, ■' union dues, special \¡education or training costs, telephone, additional, food or personal needs, etc., which are an obligation'due to the employment, an allowance of $30 per month is made for such costs.”

Thus, while Colorado continued to allow individualized treatment of mandatory payroll deductions and child care costs, all other, wprk-related expenses were subjected to a uniform allowance.of $30, even if an applicant could prove actual expenses in excess of that figure. The Regional Commissioner of the Social and Rehabilitation Sefvice of HEW thereafter accepted the incorporation of this provision into Colorado’s AFDC plan.

When this suit was commenced in July 1970, Mrs. Vialpando was' employed some eight miles from the small Colorado community in which she resided with her two-year-old daughter. Since no public transportation was available, respondent traveled to and from work each day in a used automobile she had purchased for that purpose. In making the requisite eligibility and assistance determinations under the Colorado AFDC program, Mrs. Vialpando had been permitted to deduct $47.30 in mileage costs and $63.81 'in car payments from her monthly gross income. These deductions of approximately $110 per month, coupled with child care and mandatory payroll deductions,- entitled her to an AFDC grant of $74 per month for herself and her daughter. The effect of the July 1970 amendment of the Colorado AFDC regulations was to reduce respondent’s monthly deductions for transportatipn expenses related to employment from $110 to $30. The corresponding increase in her monthly net earned income rendered her ineligible for continued AFDC assistance.

Respondent thereupon brought this class action in the United States District Court for the District of Colorado under 42 U. S. C. § 1983 and 28 U. S. C. §§ 1343 (3) and (4). She sought the convening of a three-judge District Court, and requested injunctive relief and a declaratory judgment that the Colorado standardized work-expense allowance violated § 402 (a)(7) of the Act and the Equal Protection Clause of the Fourteenth Amendment. Named as defendants were the Executive Director of the Colorado Department of Social Services and other state officers involved in administering Colorado’s AFDC program. Upon stipulated facts and in reliance upon § 402 (a)(7) of the Act, the District Court in an unreported order grantee! respondent’s motion for summary judgment and enjoined enforcement of the challenged regulation. Finding the pendent federal statutory claim dispositive, the District Court properly did not reach the constitutional issue and properly did not convene a- three-judge court. Hagans v. Lavine, 415 U. S. 528 (1974).

The United States Court of Appeals for the Tenth Circuit affirmed. 475 F. 2d 731 (1973). Relying on the language and the legislative history of § 402 (a) (7) and on other provisions of the Act, the. court interpreted the words “any expenses” in § 402 (a) (7) to mean “all actuál expenses,” and held that the standardized allowance did not meet this requirement. The court reasoned that the statute could be read to permit the use of a standardized allowance for employment expenses, but only where such an allowance was adequate to cover all actual expenses. We agree.

11

The Social Security Act of 1935, as originally enacted, 49 Stat. 620, did not expressly require that States allow AFDC beneficiaries to deduct from gross income expenses incurred in connection with the earning of income. The precursor to §402 (a) (7), which appeared in the 1939 amendments to the Act, 53 Stat. 1379, provided simply that

“the State agency shall, in determining need, take into consideration any other income and resources of any child claiming aid to dependent children.”

The Social Security Board, the federal entity then overseeing the categorical public assistance programs^soon recognized that under the predecessor of the AFDC'program recipient families with working members incurred certain employment-related expenses that reduced available income but were not taken into account by the States in determining eligibility for AFDC assistance. In keeping with the Act’s purpose of encouraging employment even when the income produced theréby did not eliminate entirely the need for public assistance, the Board recognized that a failure to. consider work-related expenses could result in a disincentive to seek or retain employment. Accordingly, the States were permitted but not required to allow credit for work-related expenses in determining eligibility.

As part of a general amendment of the Act in 1962, Pub. L. 87-543, 76 Stat. 185, Congress made mandatory the widespread but then optional practice of deducting employment expenses from total income in détermining eligibility for assistance. Section 402 (a) (7) of the Act as thus amended provided in relevant part:

“[T]he State agency shall, in determining need, take into consideration any other income and resources of-any child or relative claiming aid to families . with dependent children, as well as any expenses reasonably attributable to the earning of any such income•. . . .” (Emphasis added.)

By its terms, § 402 (a)(7) requires the consideration of “any” reasonable work expenses in determining eligibility 'for AFDC assistance. In light of the evolution of the statute and the normal meaning of the term “any,” we “read this, language as a congressional directive that no limitation, apart from that of reasonableness, may be placed upon the recognition of expenses attributable to the earning of income. Accordingly, a fixed work-expense allowance which does not permit deductions for expenses in excess of that standard, is directly contrary to the language of the statute.

Petitioners, relying upon the “take into consideration” phrase of § 402 (a)(7), argue that the requirement of “consideration” is satisfied by the use of a- statistical average of the actual expenses of all AFDC participants in the State. But this argument ignores the fact that the phrase “take into consideration” modifies “income and resources ... as well as any expenses reasonably attributable to the earning of any such income” (emphasis added). Thus, it seems inescapable that whatever treatment is accorded income must also be extended to expenses attributable to the earning of income. And, it has consistently been the practice to compute the income of an AFDC applicant on an individual basis.

From the inception of the Act, Congress has sought to ensure that. AFDC assistance is provided only to needy families, and that the' amount, of assistance actually paid is based on the amount needed in the individual case after other income and resources are considered. Congress has been careful to ensure that all of the income and resources properly attributable to a particular, applicant be taken into account, and this individualized approach has been reflected in the implementing regulations. For example, HEW’s broad definition of “earned income” as “income in cash or in kind earned by a needy individual through the receipt of wages, salary, commissions, or profit from activities in which he is enagaged as a self-employed individual or as an employee,” 45 CFR § 233.20 (a)(6) (iii), and its more specific descriptions of commissioned, salaried, and self-employment derived income in 45 CFR §§ 233.20 (a)(6) (iv-viii), demonstrate its view that the determination of need in each case is to be based upon an assessment of the particular individual’s available income and resources. Moreover, individualized consideration of available income and resources is clearly contemplated by HEW regulations providing for the exclusion of such items as scholarship funds and loans, see 45 CFR §§ 233.20 (a) (3) (ii-vii), and requiring that certain items such as food stamps be. deducted, 45 CFR § 233.20 (a)(4). Thus, if income and expenses related to the production of income are to be treated alike, as the terms of § 402 (a) (7) appear to require, both must be considered on an individualized basis.

The literal import of § 402 (a) (7) is confirmed by the statute's legislative history. The congressional purpose in requiring the States to take into- consideration employment expenses was clearly set forth in S. Rep. No. 1589, 87th Cong., 2d Sess., 17-18 (1962), which explained:

“Under present law . . . States are permitted, but not required, to take into consideration the expenses an individual has in earning any income (this practice is not uniform in the country and in a substantial number of States full consideration of such expenses is not given). The committee believes that it is only reasonable for the States to take these expenses fully into Account. Under existing law if these work expenses are not considered in determining need, they have the effect of providing a disincentive to working since that portion of the family budget spent for work expenses has the effect of reducing the amount available for food, clothing, and shelter. The bill has, therefore, added a provision in all assistance titles requiring the States to give consideration to any expenses reasonably attributable to the earning of income.” (Emphasis added.)

Virtually identical language appears in the House Report. See H. R. Rep. No. 1414, 87th Cong., 2d Sess., 23 (1962).

Congress thus sought to encourage AFDC recipients to secure and retain employment by requiring the States to take into account fuily any expenses attributable to .the earning of income in determining eligibility for assistance. Such expenses reduce the level of actually available income, and if not deducted from gross income will not produce a corresponding increase in AFDC assistance. Failing to allow the deduction of reasonable expenses might well discourage the applicant from seeking or retaining employment whereby such expenses are incurred. Section 402 (a) (7) was aimed at removing this disincentive.. As then-Secretary- of HEW Ribicoff explained the legislation .in testimony before the Senate:

“[W]e are trying to do . . . everything we can to encourage péople to get a job and work and we feel it is important to encourage the States. By having this provision, the' State will take into account these expenses so people will get jobs. I believe that the State should give them an' allowance for those items that are necessary- for them to get the job.” Hearings on the Public Assistance Act of 1962 before the Senate Committee on Finance, 87th Cong., 2d Sess., 152 (1962).

Standardised treatment of employment-related expenses without provision for demonstrating actual and reasonable expenses in excess of that standard amount, such as Colorado has adopted, threatens to defeat the goal Congress sought to achieve in adopting the mandatory work-expense recognition provisions of § 402 (a)(7). By limiting employment expenses to $30 per month, the Colorado regulation results in a disincentive to seek or retain' employment for all recipients whose reasonable work-related expenses exceed or- would exceed that amount. Accordingly, the Colorado regulation conflicts with federal law-and is therefore invalid.

It is, of course, not the adoption of a standardized work-expense allowance per se which we hold to be violative of § 402 (a)(7) of the Act, but the fact that the standard used by Colorado is in effect a maximum or absolute. limitation upon the recognition of such expenses. As the Court of Appeals correctly observed, a standard allowance would be permissible, and would substantially serve petitioners’ interests in administrative efficiency, if it provided for individualized consideration of expenses in excess off the standard amount-. See 475 F. 2d. at 735. See also Anderson v. Graham, 492 F. 2d 986 (CA8 1973); Adams v. Parham, Civ. No. 16041 (ND Ga. Apr. 14, 1972) (unpublished); and Campagnuolo v. White, Civ. No. 13968 (Conn. June 22, 1972) (unpublished). Such a standard allowance would comport fully with the statutory requirement 'that any reasonable Work expenses be considered, and would allow individualized treatment where necessary.

As the Court has previously observed, the AFDC program is an area in which Congress at times “has voiced its wishes in muted strains and left it to the courts to discern, the theme in the cacophony of political understanding.” Rosado v. Wyman, 397 U. S., a. 412. But as to reasonable-expenses a-ttributable to the earning of .income, Congress has spoken with firmness and. clarity.

The judgment is affirmed.

It is só ordered.

       Section 4313.13, vol. 4, Colorado Division of Public Welfare Staff Manual^effective March 1970), provided.in part:
      .“Employment expenses which are deducted from the gross amount received by an employed , recipient include, but are not restricted to: “Transportation expenses:
      “Public transportation to and from work is allowed at actual cost. When the recipient must use his own car as transportation to and from work,' 5‡ a mile is allowed, plus parking fees if required. Purchase, repair, or upkeep of a vehicle,' providing it is essential to re-, tain' employment and the plan therefore is approved by the county department."

       Section 4313.13, vol. 4, Colorado Division of Public Welfare Staff Manual (effective July 1970). The $30 standardized figure is an average based upon a statewide statistical survey of work expenses incurred by persons in the AFDC program.in Colorado. It was calculated by examining the work expenses of every AFDC recipient in. Colorado for the last month of each quarter of the year from March 1969 to March 1970. -The expenses included transportation, union dues, uniforms and tools, telephone, and general items, but excluded the cost of child care. The statewide average varied from a low of $30.55 in June 1969 to a high of $36.93 in March 1970.

       According to HEW, 20 States', including Colorado, presently employ a standard work-expense allowance in combination with actual child care expenses, and .in some cases mandatory payroll deductions, and an additional 15 States use other systems of mandatory standard allowances for .one or more major items of work expense. Brief' for United States as Amicus Curiae 5. These standard allowances have often been the subject of litigation. A number have been held invalid. See Anderson v. Graham, 492 F. 2d 986 (CA8 1973) (Nebraska $25 standard work-expense allowance); Connecticut State Dept. of Pub. Welfare v. HEW, 448 F. 2d 209 (CA2 1971) (Connecticut regulation limiting the types of deductible work-related expenses); Adams v. Parham, Civil Action No. 16041 . (ND Ga. Apr. 14, 1972) (unpublished) (Georgia $35 standard work-expense allowance); Campagnuolo v. White, Civil Action No. 13968 (Conn. June 22, 1972) (unpublished) (Connecticut $60 standard allowance for full-time employment expenses and $40 standard allowance for part-time employment expenses); Williford v. Laupheimer, 311 F. Supp. 720 (ED Pa. 1969) (Pennsylvania $50 maximum allowance for work expenses); County of Alameda v. Carleson, 5 Cal. 3d 730, 488 P. 2d 953 (1971), appeal dismissed, 406 U. S. 913 (1972) (California work-expense regulation providing for standard deductions ranging from $6 to $25 per month). In X v. McCorkle, 333 F. Supp. 1109 (N. J. 1970), modified on other grounds, sub nom. Engelman v. Amos, 404 U. S. 23 (1971), the court approved in dicta New Jersey’s $50 standard work-expense allowance. In Conover v. Hall, 104 Cal. Rptr. 77 (1972), decision vacated pending appeal in California Supreme Court, the court upheld California’s $50 standard allowance.

         Colorado did not make it a statewide practice to allow AFDC recipients to deduct installment payments on the purchase of a car. Consistent with the reasonableness requirement of 42 U. S. C. § 602 (a)(7), such determinations were, quite correctly, made on a case-by-case basis. As counsel for the State commented at oral argument: “This was an individual decision in an individual case in El Paso County, Colorado. The same facts could have been presented to an eligibility technician in another part of Colorado, who would have made a decision . . . that the car was a personal expense, that, a job was available closer to the home of the recipient or that she could use public transportation.” Tr. of Oral Arg. 33-34.
      Respondent correctly concedes the State’s responsibility for inquiring into whether claimed deductions are excessive or are truly attributable to the earning of income. Brief for Respondent 4. No doubt a State should scrutinize with particular care claimed expenses for automobiles or other items that in large measure are capital expenditures which will also be used for personal purposes unrelated to employment. Recognizing that States in administering AFDC programs must determine the reasonableness of work-related expenses does not, however, resolve the issue before us — whether States may ban. all such expenses, no matter how reasonable and necessary, above a fixed cutoff figure.

       Another effect of the change in the State’s AFDC regulation was to terminate respondent’s eligibility for participation in Colorado’s medical assistance program under Title XIX of the Social Security Act, 42 U. S. C. § 1396a (a) (10).

       While the case was pending in the District Court, respondent terminated her employment and again received an AEDC grant. Prior to the summary judgment hearing, she returned to work, again incurring work-related expenses substantially in excess of the $30 allowance. Although respondent continued to receive a grant despite her renewed employment, the amount was significantly lower than it would have been if she had been permitted to deduct work expenses in full.

         The AFDC program was originally known as “Aid to Dependent Children.” 49 Stat. 627. In 1962, the name of the program was changed to “Aid and Services to Needy Families with Children,” and the name of the assistance provided under the program changed to “Aid to Families with Dependent Children.” Pub. L. 87-543, 76 Stat. 185, §§ 104 (a) (1) and 104 (a) (2).

       Section 3140 of the HEW Handbook of Public Assistance Administration, Part IV (1957), thus provided in part:
      “A State public assistance agency may establish a reasonable minimum money amount to represent the combined additional cost of three items — food, clothing, and personal incidentals — for all employed persons. The State plan may provide that other items of work expense will be allowed, when there is a determination that such expenses do, in fact, exist in the individual case.”
      See also Social Security Board, Bureau of Public Assistance, State Letter No. 4 (Apr. 30, 1942); HEW, State Letter No. 291 (Mar. 11, 1957) (indicating agency approval of such deductions).

       See generally 42 U. S. C. § 601; H. R. Doc. No. 81, 74th Cong., 1st Sess. (1935); H. R. Rep. No. 615, 74th Cong., 1st Sess. (1935); S. Rep. No. 628, 74th Cong., 1st Sess. (1935); E. Witte, The Development of the Social Security Act 163-164 (1962).

       Title 45 CFR § 233.20 (a) (6) provides in part:
      “(iv) With reference to commissions, wages, or salary, the term ‘earned income’ means the total amount, irrespective of personal expenses, such as income-tax deductions, lunches, and transportation to and from work, and irrespective of expenses of employment which are not personal, such as the cost of tools, materials, special uniforms, or transportation to call on customers.
      “(v) With respect to self-employment,. the term ‘earned income’ means the total profit from business enterprise, farming, etc., resulting from a comparison of the gross income received with the ‘business expenses,’ i. e., total cost of the production of the income. Personal expenses, such as income-tax payments, lunches, and transportation to and from work, are not classified as business expenses.
      “(vi) The definition shall exclude the following from ‘earned income’: Returns from capital investment with respect to which the individual is not himself actively engaged, as in a business (for example, under most circumstances, dividends and interest would be excluded from ‘earned income’); benefits (not in the nature of wages, salary, or profit) accruing as compensation, or reward for service, or as compensation for lack of employment ....
      “(vii) With regard to the degree of activity, earned income is income produced as a result- of the .performance of services by a recipient; in other words, income which the individual earns by his own efforts, including managerial responsibilities, would be properly classified as earned income, such as management of capital investment in real estate. Conversely, for example, in the instance of capital investment wherein the individual carries no specific responsibility, such as where rental properties are in the hands of rental agencies and the check is forwarded to the recipient, the income would not be classified as earned income.
      " (viii) Reserves accumulated from earnings- are given no different treatment than reserves accumulated from any other sources.”

       Petitioners claim that HEW has permitted the use of standard work-expense allowances in recognition of the practical necessities of administration and that the Department’s construction of its own regulations is entitled to great weight. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969); Udall v. Tallman, 380 U. S. 1 (1965). But the sound principle of according deference to administrative practice normally applies only where the relevant statutory language is unclear or susceptible of differing interpretations. See, e. g., Townsend v. Swank, 404 U. S. 282, 286 (1971). Jn view of the literal requirements of §402 (a)(7), which accord- with'the federal policy underlying its enactment, we need not look to agency practice in this case. Moreover, HEW itself has not adhered to a uniform practice. Although in recent years HEW has construed § 402 (a) (7)’ • to permit standardization of some items, in 1964 it required that “[i] terns of work expenses must be allowed when there is a determination that such expenses do, in fact, exist in the individual case.” HEW, Handbook of Public Assistance Adm nistration, Part IV, § 1340 (1964).

       Our interpretation of §402 (a)(7) is also supported by the disinclination of the Congress to amend the section to permit the use of various standardized allowances. See H. R. 16311, 91st Cong., 2d Sess., § 101 (1970); H. R. 1, 92d Cong., 1st Sess., § 401 (1971). In explaining the latter bill, which would have replaced the present work-expense provision with an increase ill the earned income disregard of § 402 (a) (8) (A) (ii), the Committee on Ways and -Means observed that it “would eliminate the open-ended work expense exclusion . . . .” H. R. Rep. No. 92-231, p. 177 (1971), See also S. 2311, and H. R. 3153, 93d Cong, 1st Sess. (1973).

       The Court’s observation in Rosado v. Wyman, 397 U. S. 397, 419 (1970), that “[w]e do not, of course, hold that New York may not, consistently with the federal statutes, consolidate items on the basis of statistical averages,” was in no sense intended as a blanket approval of the principle of averaging under AEDC programs without regard to what is being averaged. In that ease, the Court found a New York statute fixing maximum AFDC allowances per family and eliminating a “special grants” program, to .be in contravention of § 402 (a) (23) of the Act. In holding that New York could not completely eliminate such items from the standard of need, the Court noted that the State could, consistently with the statute, include them through ’the use of statistical averages-.' A statewide standard of need is, however, but an estimate- by state welfare officials of the minimum financial‘requirements of-a hypothetical family, and by its very nature is susceptible'of computation through the usé of statistical averages. Moreover, the discretion granted the States by Congress in determining heed, see King v. Smith, 392 U. S. 309, 318 n. 14. (1968), contrasts sharply with the statutory requirement of § 402 (a) (7) that any expenses reasonably attributable to the earnings of income be considered. In the face of that statutory command -and the clear statement of congressional purpose, we must álso-' reject petitioners’ claims of administrative efficiency or convenience. See Rosado v. Wyman, supra, at 417.
      We also note that' Colorado’s use of a standard work-expense allowance is not justified by, its undisputed power to set the level of benefits under the AFDC program-. See Rosado v. Wyman, supra; Jefferson v. Hackney, 406 U. S. 535 (1972). Although Colorado may adjust the percentage of need which it has agreed to pay all recipients through its power to determine AFDC funding, see King v. Smith, supra, it may not do so in .a manner .that violates a specific requirement of the Act. See Connecticut State Dept. of Pub. Welfare v. HEW, 448 F. 2d 209 (CA2 1971).