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    COUNTY OF SANTA CRUZ v CERVANTES, 9915441

    U.S. 9th Circuit Court of Appeals

    COUNTY OF SANTA CRUZ v CERVANTES
    9915441

    In re: RAYMOND CERVANTES.
    Debtor.
    No. 99-15441
    COUNTY OF SANTA CRUZ,                                 BAP No.
    NC-97-1822-
    Appellant,
    RyKMe
    v.
    OPINION
    RAYMOND CERVANTES,
    Appellee.
    
    
    Appeal from the Ninth Circuit
    Bankruptcy Appellate Panel
    Ryan, Klein, and Meyers, Judges, Presiding
    
    Argued and Submitted
    March 13, 2000--San Francisco, California
    
    Filed July 18, 2000
    
    Before: Henry A. Politz,1 Stephen Reinhardt, and
    Michael Daly Hawkins, Circuit Judges.
    
    Opinion by Judge Hawkins
    
    SUMMARY 
     
    The summary, which does not constitute a part of the opinion of the court, 
    is copyrighted C 2000 by West Group. 
    _________________________________________________________________
    
    Bankrupcty/Dischargeability of Debts
    
    The court of appeals reversed a decision of the Bankrupcty
    Appellate Panel. The court held that an absent parent who
    owes money to the County for child support payments made
    by the County prior to the entry of a child support order can-
    not discharge that debt in Chapter 13 bankruptcy proceedings.
    
    Appellee Ray Cervantes fathered a child with Monica
    Samudio. In March 1993, Samudio applied to the County of
    Santa Cruz for Aid to Families with Dependent Children
    (AFDC). As a condition for receiving AFDC, she was
    required under state and federal law to assign to the County
    any accrued rights to support from the child's father.
    
    In October 1994, the County obtained a judgment against
    Cervantes in state court, ordering Cervantes to pay child sup-
    port and to reimburse the County for AFDC payments made
    to Samudio from March 1993 to October 1994. Cervantes
    never paid the monthly amounts or the reimbursement, and in
    September 1996 he filed a Chapter 13 bankruptcy petition.
    
    Cervantes filed a complaint to determine whether his debt
    to the County was dischargeable. A Chapter 13 debtor who
    has completed all payments under the bankruptcy plan is enti-
    tled to a discharge of prior debts, with exceptions. A debtor
    is not entitled to discharge any debt to a spouse or child for
    support in connection with a court order under 11 U.S.C.
    S 523(a)(5). But such a debt can be discharged if it was
    assigned to another entity, unless the assignment was pursuant
    to 42 U.S.C. S 602(a)(26), the provision under which Samu-
    dio assigned her support rights to the County in exchange for
    AFDC.
    
    The Ninth Circuit has held that S 602(a)(26) requires an
    applicant for AFDC to assign support rights which have
    accrued at the time such assignment is executed; thus, under
    California law, a custodial parent does not have a right to sup-
    port absent a court judgment. The Ninth Circuit concluded
    that prior to the entry of a court judgment, a custodial parent
    has no accrued rights that can be assigned pursuant to
    S 602(a)(26); an absent parent is entitled to discharge debts
    owed to the county for pre-judgment AFDC payments.
    
    Cervantes moved for summary judgment in the bankruptcy
    court, arguing that the debt owed to the County for pre-
    judgment AFDC payments was dischargeable.
    
    The County pointed to two Welfare Reform Act provisions.
    The first provision, U.S.C. S 523(a)(18), stated that a debtor
    is not entitled to discharge any debt owed under State law to
    a State or municipality that is (A) in the nature of support, and
    (B) enforceable under part D of title IV of the Social Security
    Act. The second provision, 42 U.S.C. S 656(b), stated that a
    debt owed under State law to a State or municipality that is
    in the nature of support and that is enforceable under this part
    is not released by a discharge in bankruptcy under Title 11.
    
    The County argued that because these two provisions did
    not refer to an assignment pursuant to section 602(a)(26), they
    created a new exception to the general discharge rule. The
    County maintained that S 656(b) applied to Cervantes' case
    because it referred to discharges generally under Title 11, and
    S 1328(a) is part of Title 11.
    
    The bankruptcy court reasoned that the first provision had
    been added to the bankruptcy code to effectuate the second
    provision, which had been added to the codified version of the
    Social Security Act, and concluded that an amendment to the
    Social Security Act could not by itself change the bankruptcy
    law and that Congress had only inserted the second provision
    to reflect the change made by the first provision.
    
    The County appealed, arguing that S 656(b) provides an
    independent basis upon which to find a child-support debt
    non-dischargeable. The Bankruptcy Appellate Panel (BAP)
    ruled that as the County had not made this argument to the
    bankruptcy court, the argument was waived. The BAP
    affirmed the bankruptcy court's decision.
    
    The County appealed.
    
    [1] The County did not waive its S 656(b) argument.
    
    [2] Section 523(a) lists certain types of debt that Congress
    has declared to be non-dischargeable in bankruptcy proceed-
    ings, providing that a discharge under section 727, 1141,
    1228(a), 1228(b), or 1328(b) does not discharge an individual
    debtor from debt under S 523(a)(5) or S 523(a)(18).
    
    [3] Section 523(a) does not apply to discharges under sec-
    tion 1328(a). Although S 1328(a) is not covered by the excep-
    tions in section 523(a), it specifically incorporates several of
    those exceptions. Section 1328(a) incorporates section
    523(a)(5), but does not incorporate section 523(a)(18). When
    Congress passed the Welfare Reform Act, it did not amend
    section 1328(a) to include section 523(a)(18) in its list of
    exceptions.
    
    [4] Section 656(b), as amended by the Welfare Reform Act,
    does not refer to an assignment under S 602(a)(26). Whereas
    the discharge exceptions of sections 523(a) and 1328(a) apply
    only to discharges under certain sections of the bankruptcy
    code, the discharge exception of section 656(b) applies to any
    bankruptcy case.
    
    [5] The statutory scheme was inconsistent.
    
    [6] The plain language of S 656(b) made clear that it
    applied to all bankruptcy cases, not just certain ones. The
    plain language of a statute is ignored only when a literal inter-
    pretation would thwart the purpose of the over-all statutory
    scheme or lead to an absurd result. Holding thatS 656(b)
    applied to cases under S 1328(a) would not thwart the overall
    statutory purpose or lead to an absurd result.
    
    [7] There was a moderate inconsistency in the statutory
    scheme, but the conflicting sections were capable of co-
    existence, and there was no positive repugnancy between
    them. Section 656(b) provided an independent basis upon
    which to find a child support debt nondischargeable in any
    bankruptcy proceeding under Title 11.
    
    [8] Section 656(b) prohibits the discharge of a debt (1)
    owed under state law to a state or municipality, (2) that is in
    the nature of support, and (3) that is enforceable under part D
    of Title IV of the Social Security Act.
    
    [9] Cervantes' debt to the County for pre-judgment AFDC
    payments was not dischargeable in bankruptcy.
    
    _________________________________________________________________
    
    COUNSEL
    
    Philip L. Strauss (argued) and Mary A. Roth, Office of the
    State Attorney General, San Francisco, California, for the
    appellant.
    
    Andrew Lauderdale, Lauderdale Law Offices, Monterey, Cal-
    ifornia, for the appellee.
    
    _________________________________________________________________
    
    OPINION
    
    HAWKINS, Circuit Judge:
    
    May an absent parent who owes money to the County for
    child support payments made by the County prior to the entry
    of a child support order have that debt discharged in a Chapter
    13 bankruptcy proceeding? We recently held, in the context
    of a Chapter 7 bankruptcy, that an absent parent is not entitled
    to discharge such a debt. See In re Leibowitz , No. 99-55503,
    2000 WL 890467 (9th Cir. July 6, 2000). This conclusion was
    based on recent changes to the bankruptcy and welfare laws.
    The absent parent in this case claims those changes only apply
    to bankruptcy filings under Chapter 7, not Chapter 13. We
    disagree and hold that the new discharge provisions apply to
    any bankruptcy filing under Title 11.
    
    I. FACTS AND PROCEDURAL BACKGROUND
    
    Ray Cervantes fathered a child with his girlfriend, Monica
    Samudio. On March 18, 1993, shortly after the child was
    born, Samudio applied to the County of Santa Cruz for Aid
    to Families with Dependent Children ("AFDC"). As a condi-
    tion for receiving AFDC, she was required under state and
    federal law to assign to the County any "accrued " rights to
    support from the child's father. See 42 U.S.C. S 602(a)
    (26)(A); Cal. Welf. & Inst. Code S 11477(a). 2
    
    In October 1994, the County obtained a judgment against
    Cervantes in state court pursuant to California Welfare and
    Institutions Code S 11350.3 The judgment ordered Cervantes
    to pay $219 per month in child support and to reimburse the
    County $4,161 for AFDC payments made to Samudio from
    March 1993 to October 1994. Cervantes never paid the
    monthly amounts or the reimbursement, and in September
    1996 he filed a Chapter 13 bankruptcy petition.
    
    While his bankruptcy petition was pending, Cervantes filed
    a complaint to determine whether the debts he owed to the
    County were dischargeable. Under 11 U.S.C. S 1328(a), a
    Chapter 13 debtor who has completed all payments under the
    bankruptcy plan is entitled to a discharge of prior debts, with
    certain exceptions. For instance, a debtor is not entitled to dis-
    charge any debt to a spouse or child for support in connection
    with a court order. See 11 U.S.C. S 523(a)(5) (incorporated by
    reference into 11 U.S.C. S 1328(a)). But such a debt can be
    discharged if it was assigned to another entity, unless the
    assignment was pursuant to 42 U.S.C. S 602(a)(26), which is
    the provision under which Samudio was required to assign her
    support rights to the County in exchange for AFDC.
    
    In this case, Cervantes owed a debt to Samudio for child
    support that was in connection with a court order. The debt
    had been assigned to another entity -- the County -- but that
    assignment had been made pursuant to 42 U.S.C.
    S 602(a)(26), so it would have seemed that his debt was not
    dischargeable under 11 U.S.C. S 523(a)(5).
    
    The issue was more complicated, however. In Ramirez v.
    County of Santa Clara, 795 F.2d 1494, 1497 (9th Cir. 1986),
    we parsed the language of section 602(a)(26) and noted that
    it requires an applicant for AFDC to assign support rights
    "which have accrued at the time such assignment is execut-
    ed." (emphasis added). We then noted that under California
    law, a custodial parent does not have a right to support absent
    a court judgment. See id. Putting these two pieces together,
    we concluded that prior to the entry of a court judgment, a
    custodial parent has no accrued rights that can be assigned
    pursuant to section 602(a)(26). See id. And because a child
    support debt assigned to the county was only excepted from
    discharge if assigned pursuant to section 602(a)(26), we held
    that an absent parent was entitled to discharge debts owed to
    the county for pre-judgment AFDC payments. See id. We
    reaffirmed this holding nine years later in Visness v. Contra
    Costa County, 57 F.3d 775 (9th Cir. 1995).
    
    Relying on these two cases, Cervantes moved for summary
    judgment in the bankruptcy court. He argued that the $4,161
    owed to the County for pre-judgment AFDC payments was dis-
    chargeable.4 The County cross-moved for summary judgment.
    Although it acknowledged that Ramirez and Visness allowed
    the discharge of pre-judgment debts, it maintained that subse-
    quent legislation had circumvented the effect of those cases.
    
    The County pointed to two provisions contained in the
    Welfare Reform Act of 1996.5 The first provision was added
    to the Bankruptcy Code at 11 U.S.C. S 523(a)(18) and states
    that a debtor is not entitled to discharge any debt "owed under
    State law to a State or municipality that is (A) in the nature
    of support, and (B) enforceable under part D of title IV of the
    Social Security Act." The second provision was added to the
    Social Security Act at 42 U.S.C. S 656(b) and is nearly identi-
    cal to the first provision. It states that "[a ] debt . . . owed
    under State law to a State . . . or municipality . .. that is in
    the nature of support and that is enforceable under this part is
    not released by a discharge in bankruptcy under Title 11."
    
    The County argued that because these two provisions did
    not refer to an assignment pursuant to section 602(a)(26), they
    created a new exception to the general discharge rule that was
    not affected by this court's decisions in Ramirez and Visness.
    The County conceded that the first provision, section
    523(a)(18), did not apply to discharges under 11 U.S.C
    S 1328(a) -- which is the provision under which Cervantes
    had sought a discharge -- because section 523(a)(18) is part
    of a larger provision that does not relate to section 1328(a)
    proceedings. See 11 U.S.C. S 523(a). 6 The County also con-
    ceded that Congress had not changed section 1328(a) to spe-
    cifically incorporate the discharge exception of section
    523(a)(18), the way section 1328(a) incorporates the dis-
    charge exception of section 523(a)(5).7  But the County main-
    tained that the second provision, at 42 U.S.C. S 656(b),
    applied to Cervantes' case because it refers to discharges gen-
    erally under Title 11, and section 1328(a) is part of Title 11.
    
    The bankruptcy court rejected the County's argument.
    Because the two new provisions contained such similar lan-
    guage, the bankruptcy court reasoned that the first provision
    had been added to the bankruptcy code to effectuate the sec-
    ond provision, which had been added to the codified version
    of the Social Security Act. Although the bankruptcy court did
    not elaborate, it apparently concluded that an amendment to
    the Social Security Act could not by itself change the bank-
    ruptcy law and that Congress had only inserted the second
    provision to reflect the change made by the first provision.
    The County appealed, arguing that section 656(b) provides
    an independent basis upon which to find a child-support debt
    non-dischargeable. The Bankruptcy Appellate Panel ("BAP")
    ruled that the County had not made this argument to the bank-
    ruptcy court and that the argument was therefore waived. The
    BAP then affirmed the bankruptcy court's decision, and the
    County filed this timely appeal. We have jurisdiction under 28
    U.S.C. S 158(d).
    
    II. STANDARD OF REVIEW
    
    When a decision of the bankruptcy court is on appeal from
    the BAP, we independently review the bankruptcy court's
    decision. See In re Michael, 163 F.3d 526, 529 (9th Cir.
    1998). The bankruptcy court's interpretation of the Bank-
    ruptcy Code is reviewed de novo. See In re Been , 153 F.3d
    1034, 1036 (9th Cir. 1998).
    
    III. ANALYSIS
    
    A. Waiver
    
    We must first address the BAP's finding that the County
    waived its argument concerning section 656(b). In making
    this determination, the BAP acknowledged that the County
    cited section 656(b) along with 11 U.S.C. S 523(a)(18) to the
    bankruptcy court. But, the BAP concluded, the County did not
    assert that section 656(b) alone could support its claim that
    Cervantes' debt for child support was non-dischargeable. As
    a result, it held, the County waived this argument.
    
    We disagree. In its motion for summary judgment before
    the bankruptcy court, the County cited both sections 656(b)
    and 523(a)(18) for the proposition that Congress had altered
    the law of dischargeability. That the County did not go one
    step further and assert that each provision, by itself, was suffi-
    cient to change the law is unimportant. The bankruptcy court
    was advised of the changes to section 656(b) and had suffi-
    cient information to assess the independent effect of that pro-
    vision.
    
    In fact, the bankruptcy court appears to have done just that.
    In its grant of summary judgment to Cervantes, the court
    stated that "[b]y adding S 523(a)(18) to the Bankruptcy Code,
    Congress effectuated in bankruptcy cases the dischargeability
    provision found at 42 U.S.C. S 656(b)." It then stated that if
    Congress had intended for that change to apply to section
    1328(a) cases, "it would have added S 523(a)(18) as an excep-
    tion . . . under S 1328(a), as it did, for example, with
    S 523(a)(5)." Thus, the bankruptcy court apparently consid-
    ered whether section 656(b) provided an independent basis for
    non-dischargeability. And based on Congress' failure to
    amend section 1328(a), the court concluded that section
    656(b) had no independent effect; it simply reflected the
    change in law made by section 523(a)(18).
    
    [1] Under these circumstances, we cannot conclude that the
    County waived its argument concerning section 656(b). We
    therefore proceed to the merits of the County's claim.
    
    B. The effect of section 656(b)
    
    [2] To understand the bankruptcy court's conclusion that
    section 656(b) does not have independent effect, it is impor-
    tant to have a clear picture of the complex statutory scheme
    governing discharges. Ordinarily, a debtor who successfully
    navigates the bankruptcy process is entitled to a discharge of
    all pre-petition debts. See Visness, 57 F.3d at 776. There are
    certain types of debt, however, that Congress has declared to
    be non-dischargeable. See id. The main list of these debts is
    found in the Bankruptcy Code at 11 U.S.C. S 523(a). That
    section provides that "[a] discharge under section 727, 1141,
    1228(a), 1228(b), or 1328(b) of this title does not discharge
    an individual debtor from any debt" of the following kind. It
    then lists several kinds of debt that cannot be discharged,
    including those under section 523(a)(5), which was the focus
    of Ramirez and Visness, and those under section 523(a)(18),
    which was added by the Welfare Reform Act.
    
    [3] By its terms, section 523(a) covers discharges under
    five sections of the bankruptcy code. But it does not apply to
    discharges under section 1328(a). That section contains its
    own list of exceptions, which reads as follows:
    
           [T]he court shall grant the debtor a discharge of all
           debts provided for by the plan or disallowed under
           section 502 of this title, except any debt --
    
           (1) provided for under section 1322(b)(5)
           of this title;
    
           (2) of the kind specified in paragraph (5),
           (8), or (9) of section 523(a) of this title; or
    
           (3) for restitution, or a criminal fine,
           included in a sentence on the debtor's con-
           viction of a crime.
    
    11 U.S.C. 1328(a) (emphasis added). Thus, although section
    1328(a) is not covered by the exceptions to discharge listed in
    section 523(a), it specifically incorporates several of those
    exceptions. Of particular importance, section 1328(a) incorpo-
    rates section 523(a)(5). But section 1328(a) does not incorpo-
    rate section 523(a)(18). When Congress passed the Welfare
    Reform Act, it did not amend section 1328(a) to include sec-
    tion 523(a)(18) in its list of exceptions.
    
    [4] The final provision that refers to discharge exceptions
    (and that is relevant to this case) is found not in the bank-
    ruptcy code, but in the Social Security Act, at 42 U.S.C.
    S 656(b). Before the Welfare Reform Act, that section pro-
    vided that "[a] debt which is a child support obligation
    assigned to a State under section 602(a)(26) . . . is not
    released by a discharge in bankruptcy." After the Welfare
    Reform Act, section 656(b) provides as follows:
    
           (b) Nondischargeability. A debt (as defined in sec-
           tion 101 of title 11 of the United States Code) owed
           under State law to a State (as defined in such sec-
           tion) or municipality (as defined in such section) that
           is in the nature of support and that is enforceable
           under this part is not released by a discharge in bank-
           ruptcy under title 11 of the United States Code.
    
    Two things are important here. First, unlike the old section,
    the new section 656(b) does not refer to an assignment under
    section 602(a)(26). Second, whereas the discharge exceptions
    of sections 523(a) and 1328(a) apply only to discharges under
    certain sections of the bankruptcy code, the discharge excep-
    tion of section 656(b) applies to any discharge under Title 11
    -- in other words, to any bankruptcy case.
    
    [5] Looking at the statutory scheme as a whole, then, an
    inconsistency is apparent. Section 523(a)(18) applies the new
    discharge exception to discharges under sections 727, 1141,
    1228(a), 1228(b), and 1328(b), while section 656(b) applies
    the new exception to any discharge in bankruptcy. Yet section
    1328(a) does not incorporate the new provision into its list of
    exceptions.
    
    The bankruptcy court resolved this conflict by ruling that
    section 523(a)(18) effectuated section 656(b) and that section
    656(b) did not have independent effect. Had Congress
    intended for the new discharge exception to apply to section
    1328(a) cases, the court reasoned, it would have added the
    new exception to section 1328(a) directly.
    
    [6] Although this resolution makes some sense, we reject
    it for several reasons. First, the plain language of section
    656(b) makes clear that it applies to all cases under Title 11,
    not just certain ones. And while the plain language of a statute
    is not always conclusive, we ignore plain language only when
    a "literal interpretation would thwart the purpose of the over-
    all statutory scheme or lead to an absurd result. " Wilshire
    Westwood Assoc. v. Atlantic Richfield Corp., 881 F.2d 801,
    804 (9th Cir. 1989) (internal quotations omitted); see also
    Flores-Arellano v. INS, 5 F.3d 360, 364 (9th Cir. 1993) (Rein-
    hardt, J., specially concurring) ("in order to disregard the
    plain meaning of the statute, I would be required to conclude
    that the result is absurd"). In this case, holding that section
    656(b) applies to cases under section 1328(a) would not
    thwart the overall statutory purpose or lead to an absurd
    result.
    
    Second, the bankruptcy court's interpretation runs counter
    to "the rule that statutes should not be construed in a manner
    which robs specific provisions of independent effect." Davis
    v. City and County of San Francisco, 976 F.2d 1536, 1551
    (9th Cir. 1992) (opinion vacated on other grounds). We have
    consistently invoked this rule to reject interpretations that
    would render a statutory provision surplusage or a nullity.
    See, e.g., Wilshire Westwood, 881 F.2d at 804-05; United
    States v. Hoflin, 880 F.2d 1033, 1038 (9th Cir. 1989).
    
    When we have accepted such interpretations, there has
    been strong evidence that Congress did not intend for the pro-
    vision to have a certain effect. See Eastport Associates v. City
    of Los Angeles, 935 F.2d 1071, 1080 (9th Cir. 1991). Here,
    the bankruptcy court pointed to no evidence of legislative
    intent. It relied instead on the assumption that Congress would
    not have created a new discharge exception for section
    1328(a) without listing that exception specifically in section
    1328(a). The court's faith in the precision of legislative drafts-
    manship is admirable, but perhaps not realistic, especially in
    the complex area of bankruptcy law.
    
    Cervantes argues that legislative history does support the
    bankruptcy court's interpretation. He points out that when
    section 656(b) was initially introduced in the House of Repre-
    sentatives, it provided that "[a] debt . . . to a State . . . or
    municipality . . . for assistance provided by such State or
    municipality under a State program funded under section 403
    is not dischargeable under section 727, 1141, 1228(a),
    1228(b), or 1328(b) of title 11 of the United States Code . . . ."
    142 Cong. Rec. H7907, H7947. The underlined portion was
    later changed to "is not released by a discharge in bankruptcy
    under title 11 of the United States Code," but Cervantes main-
    tains that the early version is evidence of Congress' intent to
    limit the scope of section 656(b).
    
    This argument cuts both ways, however. One could just as
    easily conclude that the earlier version was purposefully
    rejected by Congress and that the new language was inserted
    to ensure that section 656(b) would apply to any bankruptcy
    case. Without further evidence of legislative intent, we are
    reluctant to draw any conclusions from this change of statu-
    tory language.
    
    The bankruptcy court's interpretation is also undermined
    by prior decisions concerning the effect of section 656(b). In
    In re Leach, 15 B.R. 1005 (Bankr. D. Conn. 1981), a parent
    argued that he was entitled to discharge a child support debt
    he owed to the county. The Leach court found that the dis-
    charge exception of section 523(a)(5) did not apply to the case
    because the section at that time only covered debts "in con-
    nection with a separation agreement, divorce decree, or prop-
    erty settlement agreement," and there was no evidence that
    the debt in question arose from any of those sources. None-
    theless, the Leach court held that section 656(b) created an
    independent basis upon which to find the debt nondischarge-
    able. See id. at 1008. The court acknowledged that section
    656(b) was not part of the bankruptcy code, but stated that
    "Congress need not write every law affecting discharge into
    Title 11 of the United States Code." Id. at 1008, n.8.
    
    In In Re Richards, 45 B.R. 811 (D. Or. 1984), the question
    arose again whether section 656(b) could be relied upon when
    section 523(a)(5) was inapplicable to the facts of the case.
    The bankruptcy court declined to apply section 656(b), assert-
    ing that "[i]t was the intent of Congress that all matters relat-
    ing to dischargeability and the discharge of debtors be found
    in the Bankruptcy Code and not in isolated provisions in non-
    bankruptcy codes." Id. at 813. But the district court rejected
    this argument. "However logical the bankruptcy court's struc-
    tural analysis, it is contrary to the plain meaning of the stat-
    utes as well as to what little legislative history is available.
    The bankruptcy court may not ignore section [656(b)] simply
    because it is not part of the Bankruptcy code." Id. at 814.
    
    [7] Neither Leach nor Richards are binding upon this court,
    but both reflect the general proposition that when two statutes
    are capable of co-existence, we should regard each as effec-
    tive. See Resource Investments, Inc. v. U.S. Army Corps of
    Eng'rs, 151 F.3d 1162, 1165 (9th Cir. 1998); see also Con-
    necticut Nat'l Bank v. Germain, 503 U.S. 249, 253  (1992)
    ("[S]o long as there is no positive repugnancy between two
    laws, a court must give effect to both."). In this case, there is
    a moderate inconsistency in the statutory scheme, but the con-
    flicting sections are capable of co-existence, and there is no
    positive repugnancy between them. Therefore, we conclude
    that section 656(b) provides an independent basis upon which
    to find a child support debt nondischargeable in any bank-
    ruptcy proceeding under Title 11.
    
    C. Application of section 656(b) to this case 
    
    [8] Having determined that section 656(b) has independent
    effect, we must determine whether it prohibits Cervantes from
    discharging the $4,161 he owes to the County for pre-
    judgment AFDC payments. Section 656(b) prohibits the dis-
    charge of a debt (1) owed under state law to a state or munici-
    pality, (2) that is "in the nature of support, " and (3) that is
    enforceable under part D of Title IV of the Social Security
    Act.
    
    [9] There is no dispute that Cervantes' debt is owed under
    state law and that it is owed to a municipality. In addition, we
    recently held that a debt for child support to a county is both
    "in the nature of support" and enforceable under Title IV-D
    of the Social Security Act. See In re Leibowitz , 2000 WL
    890467, at *1. Therefore, Cervantes' debt to the County for
    pre-judgment AFDC payments meets all three criteria under
    section 656(b) and is not dischargeable in bankruptcy.8
    
    The decision of the BAP is REVERSED.
    _______________________________________________________________
    
    FOOTNOTES
    
    1 The Honorable Henry A. Politz, Senior Circuit Judge for the Fifth Cir-
    cuit, sitting by designation.
    2 At the time Samudio applied for AFDC, Section 602(a)(26)(A) man-
    dated that, as a condition of eligibility for aid, an applicant would be
    required
    
           (A) to assign the State any rights to support from any other per-
           son such applicant may have (i) in his own behalf or in behalf of
           any other family member for whom the applicant is applying for
           or receiving aid, and (ii) which have accrued at the time such
           assignment is executed.
    
    42 U.S.C. S 602(a)(26)(A). Cal. Welf. & Inst. Code S 11477(a), which
    implements the federal directive of section 602(a)(26)(A), contained
    nearly identical language.
    3 Section 11350 authorizes a county to seek reimbursement from a non-
    custodial parent for assistance payments made to a custodial parent.
    4 Cervantes also argued that he was entitled to a discharge of the money
    he owed for post-judgment child support payments. However, he has since
    abandoned that argument, and the current dispute concerns only the
    $4,161 owed for AFDC payments prior to entry of the judgment.
    5 The official name of the Act is the Personal Responsibility and Work
    Opportunity Reconciliation Act of 1996. Pub. L. No. 104-193, 110 Stat.
    2105 (Aug. 22, 1996).
    6 11 U.S.C. 523(a) states: "A discharge under section 727, 1141,
    1228(a), 1228(b), or 1328(b) of this title does not discharge an individual
    debtor from any debt . . ." It then lists several types of debt that cannot
    be discharged. Although section 523(a) refers to discharges under five
    provisions of the bankruptcy code, it does not refer to a discharge under
    section 1328(a).
    7 11 U.S.C. S 1328(a) provides for the discharge of all debts, "except any
    debt --
    
           (1) provided for under section 1322(b)(5) of this title;
    
           (2) of the kind specified in paragraph (5) or (8) or section
           523(a) or 523(a)(9) of this title; or
    
           (3) for restitution included in a sentence on the debtor's convic-
           tion of a crime."8 Because we conclude that Cervantes' debt is non-dischargeable under
    section 656(b), we need not address the County's arguments that changes
    to California Welfare and Institutions Code section 11350 render our deci-
    sions in Ramirez and Visness moot.
    

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