Opinion

C.K. v. New Jersey Department of Health & Human Services

  • 92 F.3d 171
Court
Court of Appeals for the Third Circuit
Filed
Aug 9, 1996
Author
Greenberg
On the bench
Stapleton, Greenberg, Aldisert
Cited by
1 cases
Authority
More cited than 55.1%

The opinion

Opinions of the United

1996 Decisions States Court of Appeals

for the Third Circuit

8-9-1996

C.K. v. NJ Dept HHS

Precedential or Non-Precedential:

Docket 95-5454

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 95-5454

C. K., ON HER OWN BEHALF AND AS GUARDIAN AD LITEM FOR HER

BABY S.B. AND HER DAUGHTER J.M.; L. W., ON HER OWN BEHALF

AND AS GUARDIAN AD LITEM FOR HER BABY E.W. AND HER SON J.W.;

E. P., ON HER OWN BEHALF AND AS GUARDIAN AD LITEM FOR HER

BABY I.P. AND HER SON R.P.; E. M., ON HER OWN BEHALF AND AS

GUARDIAN AD LITEM FOR HER BABY BOY B.M. AND HER DAUGHTER

C.G.; H. K., ON HER OWN BEHALF AND AS GUARDIAN AD LITEM FOR

HER BABIES T.H., D.H. AND D.H. AND OTHER SONS S.H. AND J.H.;

E. S. AND G. S., ON THEIR OWN BEHALF AND AS GUARDIAN AD LITEM

FOR THEIR BABY BOY B.S., SON C.S. AND THEIR DAUGHTER C.S.;

M. M., ON HER OWN BEHALF AND AS GUARDIAN FOR HER DAUGHTER

A.P. AND HER SON A.R., ON BEHALF OF THEMSELVES AND ALL

OTHERS SIMILARLY SITUATED,

Appellants

v.

NEW JERSEY DEPARTMENT OF HEALTH AND HUMAN SERVICES;

WILLIAM WALDMAN, COMMISSIONER, NEW JERSEY DEPT. OF HUMAN

SERVICES IN HIS OFFICIAL CAPACITY; DONNA SHALALA, SECRETARY,

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; and

THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES.

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 93-cv-05354)

Argued June 10, 1996

BEFORE: STAPLETON, GREENBERG, and ALDISERT, Circuit Judges

(Filed: August 9, 1996)

Lawrence S. Lustberg

Jonathan Romberg

Lenora M. Lapidus

On behalf of the ACLU-NJ

Crummy, Del Deo, Dolan,

Griffinger & Vecchione

One Riverfront Plaza

Newark, NJ 07102-5497

Martha F. Davis (argued)

Deborah A. Ellis

NOW Legal Defense & Education

Fund

99 Hudson Street - 12th Floor

New York, NY 10013

Melville D. Miller, Jr.,

President

David G. Sciarra

Legal Services of New Jersey,

Inc.

101 Metroplex Drive

P.O. Box 1357

Edison, NJ 08818-1357

Attorneys for Appellants

Joseph L. Yannotti

Assistant Attorney General

Of Counsel

Dennis J. Conklin (argued)

Senior Deputy Attorney General

Michael J. Haas

Senior Deputy Attorney General

Todd A. Wigder

Deputy Attorney General

Deborah T. Poritz

Attorney General of New Jersey

Richard J. Hughes Justice

Complex

CN 112

Trenton, NJ 08625

Attorneys for Appellees

New Jersey

Department of Human

Services and William Waldman,

Commissioner

John F. Daly (argued)

Mark B. Stern

Attorneys, Civil Division

Department of Justice

Faith S. Hochberg

United States Attorney

Frank W. Hunger

Assistant Attorney General

Civil Division, Room 7124

Department of Justice

Washington, DC 20530

Attorneys for Appellees

United States

Department of Health and Human Services and Donna

Shalala, Secretary

Shirley Brandman

Kathleen Sullivan

The Jerome N. Frank Legal

Services Organization

Yale Law School

127 Wall Street

New Haven, CT 06520

Lucy Williams

Northeastern University

School of Law

400 Huntington Avenue

Boston, MA

Attorneys for Amici-Curiae

Puerto Rican Legal Defense and

Education Fund, Society of

American Law Teachers, and Wider

Opportunities for Women

David A. Price

Daniel J. Popeo

Washington Legal Foundation

2009 Massachusetts Ave., N.W.

Washington, D.C. 20036

Attorneys for Amicus-Curiae

Washington Legal Foundation

Rand E. Rosenblatt

Rutgers University School of Law

Fifth & Penn Streets

Camden, NJ 08102

Attorney for Amici-Curiae

Members & Staff of the National

Commission for the Protection of

Human Subjects of Biomedical and

Behavioral Research and The

President's Commission for the

Study of Ethical Problems in

Medicine and Biomedical and

Behavioral Research

Nadine Taub

Women's Rights Litigation Clinic

15 Washington Street

Newark, NJ 07102

Judith L. Lichtman

Joan Entmacher

Susannah Baruch

Women's Legal Defense Fund

1875 Connecticut Ave., N.W.

Suite 710

Washington, D.C. 20009

Attorneys for Amici-Curiae

Women's Legal Defense Fund;

Advocates for Youth; American

Association of University Women;

Catholics for a Free Choice;

Center for Reproductive Law &

Policy; Feminist Majority

Foundation; National Abortion &

Reproductive Rights Action

League; National Council of

Jewish Women, Inc.; National

Council of Negro Women, Inc.;

National Family Planning &

Reproductive Health Association;

National Women's Law Center;

ProChoice Resource Center, Inc.;

Religious Coalition for

Reproductive Choice; Right to

Choose of New Jersey; and Union

of Needletrades, Industrial and

Textile Employees, AFL-CIO

William H. Mellor, III

Clint Bolick

Dana Berliner

Institute for Justice

1001 Pennsylvania Ave., N.W.

Suite 200 South

Washington, DC 20004-2505

Attorneys for Amici-Curiae The

American Legislative Exchange

Council; The Empowerment Network

Foundation; The Independent

Women's Forum; Bethsai Townsend;

Tomikka Simmons; and Nicole

Green

Evan A. Davis

Marcia L. Narine

Yves P. Denize

Cleary, Gottlieb, Steen &

Hamilton

One Liberty Plaza

New York, NY 10006

Attorneys for Amici-Curiae

Association for Children of New

Jersey; The National

Organization for Women (NOW-NJ);

American Friends Service

Committee; The Lutheran Office

of Governmental Ministry in New

Jersey; The National Association

of Social Workers, Inc.; The

Child Care Law Center; The Child

Welfare League of America; The

Food Research and Action Center;

and The National Association of

Child Advocates

William H. Hurd

Deputy Attorney General

David E. Anderson

Chief Deputy Attorney General

Craig M. Burshem

Assistant Attorney General

Siran S. Faulders

Senior Assistant Attorney

General

James S. Gilmore, III

Attorney General of the

Commonwealth of Virginia

900 E. Main Street

Richmond, VA 23219

Attorneys for Amici-Curiae The

Commonwealth of Virginia and The

States of Alabama, Arizona,

California, New York, South

Carolina, and Wisconsin

OPINION OF THE COURT

GREENBERG, Circuit Judge.

Appellants, residents of New Jersey who currently

receive welfare funding through the Aid to Families with

Dependent Children ("AFDC") program, challenge the exercise by

the Secretary of Health and Human Services ("HHS") of her

authority pursuant to section 1115 of the Social Security Act, 42

U.S.C. § 1315(a) ("section 1315(a)"), which permits her to waive

requirements for state plans under the Act to enable individual

states to test reforms to their AFDC programs through

"demonstration projects." Specifically, appellants challenge the

Secretary's grant of waivers to the State of New Jersey in July

1992 to allow implementation of the state's Family Development

Program ("FDP") which, inter alia, contains the so-called "Family

Cap" provision, an amendment to existing state law that

eliminates the standard increase provided by AFDC for any child

born to a woman currently receiving AFDC.

Appellants claim that the Secretary's waiver was

invalid and improper, that the FDP violates a number of federal

statutes and regulations, and that it violates their

constitutional rights to due process and equal protection. Both

the appellants and the state and federal appellees moved for

summary judgment in the district court on all legal issues. The

court granted summary judgment for appellees on all counts and

dismissed the complaint with prejudice. C.K. v. Shalala, 883 F.

Supp. 991 (D.N.J. 1995). This appeal followed.

The district court had jurisdiction over this case

pursuant to 28 U.S.C. §§ 1331 and 1343(3). We have jurisdiction

under 28 U.S.C. § 1291. Our review of the matter is plenary.

Helen L. v. DiDario, 46 F.3d 325, 329 (3d Cir. 1995); Mellon

Bank, N.A. v. Metro Communications, Inc., 945 F.2d 635, 642 (3d

Cir. 1991).

I. FACTUAL BACKGROUND

A. STATUTORY BACKGROUND

AFDC is a joint federal and state program established

under Title IV-A of the Social Security Act, 42 U.S.C. § 601 et

seq., to "enabl[e] each State to furnish financial assistance and

rehabilitation and other services, as far as practicable under

the conditions in such State, to needy dependent children and the

parents or relatives with whom they are living . . . ." 42

U.S.C. § 601. Under the program, if a state submits an AFDC plan

that meets the requirements of 42 U.S.C. § 602, the federal

government will reimburse it for a portion of the benefits it

provides to aid recipients. In other words, the state will

receive federal matching funds if it implements an AFDC plan that

comports fully with the Social Security Act.

AFDC is a "scheme of cooperative federalism" in which

states are given "considerable latitude" in the administration of

their own programs. King v. Smith, 392 U.S. 309, 316-19, 88

S.Ct. 2128, 2133-34 (1968). Within the statute itself, Congress

authorized financial aid:

[f]or the purpose of encouraging the care of

dependent children in their own homes or in

the homes of relatives by enabling each State

to furnish financial assistance and

rehabilitation and other services, as far as

practicable under the conditions in such

State, to needy dependent children and the

parents or relatives with whom they are

living to help maintain and strengthen family

life and to help such parents or relatives to

attain or retain capability for the maximum

self-support and personal independence

consistent with the maintenance of continuing

parental care and protection . . . .

42 U.S.C. § 601.

In 1962, Congress added section 1115 of the Social

Security Act, now 42 U.S.C. § 1315, in the Public Welfare

Amendments of 1962, Pub. L. No. 87-543, 76 Stat. 192 (1962).

Section 1315 provides, in relevant part:

In the case of any experimental, pilot,

or demonstration project which, in the

judgment of the Secretary, is likely to

assist in promoting the objectives of

subchapter I, X, XIV, XVI, or XIX of this

chapter, or Part A or D of subchapter IV of

this chapter, in a State or States--

(1) the Secretary may waive

compliance with any of the

requirements of section 302, 602,

654, 1202, 1352, 1382, or 1396a of

this title, as the case may be, to

the extent and for the period he

finds necessary to enable such

State or States to carry out such

project . . . .

42 U.S.C. § 1315(a).

New Jersey's AFDC program is administered by the

state's Department of Human Services ("DHS"). On July 1, 1992,

the New Jersey legislature enacted the Family Development

Program, now known as the Family Development Act, N.J. Stat. Ann.

§ 44:10-19 to -33, N.J. Stat. Ann. § 44:10-3.3 to -3.8 (West

1993). The FDP aims to reduce welfare dependency by, inter alia,

developing educational and vocational skills. To advance these

goals, one aspect of the FDP mandates that implementing state and

county agencies provide individual recipients with contracts

tailored to the individuals' needs, providing the recipients with

such services as:

job development and placement in full-time

permanent jobs . . . counseling and

vocational assessment; intensive remedial

education, including instruction in English-

as-a-second language; financial and other

assistance for higher education . . .; job

search assistance; community work experience;

employment skills training focused on a

specific job; and on-the-job training in an

employment setting.

N.J. Stat. Ann. § 44:10-25(b). The job training and education

programs created by the FDP for New Jersey's AFDC recipients

("FDP-JOBS") are intended to serve as New Jersey's education,

employment and job training programs under 42 U.S.C. § 681. SeeN.J. Stat.

Ann. § 44:10-19 note.

To assist recipients in pursuing their educational and

vocational goals, the FDP provides specific benefits, such as

financial assistance for higher education (N.J. Stat. Ann. §

44:10-25(f)), day care services (N.J. Stat. Ann. § 44:10-

25(g)(1)), transportation services (N.J. Stat. Ann. § 44:10-

25(g)(2)), and the extension of Medicaid benefits for up to two

years for persons who "graduate" from the AFDC program as a

result of increased earned income (N.J. Stat. Ann. § 44:10-

25(g)(3)).

The provision challenged in this action is section 3.5

of the chapter, an amendment to then-existing state law that

eliminates the standard AFDC grant increase (e.g., $102 for a

second child and $64 for a third child) for any child conceived

by and born to an AFDC recipient. In legislative findings and

declarations accompanying the enactment of section 3.5, the New

Jersey legislature declared that:

[t]he welfare system in this State should be

designed to promote family stability among

AFDC recipients by eliminating the incentive

to break up families created by AFDC program

regulations, which undermines the ability of

AFDC-enrolled mothers to achieve economic

self-sufficiency and thereby perpetuates

their dependence, and that of their children,

on welfare.

N.J. Stat. Ann. § 44:10-3.7(c).

Briefly stated, after an initial ten-month grace period

to provide notice to affected recipients, the FDP denies

additional benefits to families receiving AFDC upon the birth of

an additional child conceived while the family was receiving

AFDC, N.J. Admin. Code tit. 10, § 82-1.11 (1996). A family

affected by the provision is entitled to retain a larger amount

of earned income, permitting the family not only to offset the

denial of additional benefits but to realize an overall increase

in financial benefits through earnings. See N.J. Stat. Ann. §

44:10-3.5 and -3.6.

Section 3.5 directly conflicts with existing federal

law. Even though the FDP was enacted as a permanent, statewide

change to New Jersey's AFDC program, its implementation could not

occur without the state losing its federal matching funds, absent

a waiver from the Secretary of HHS. Consequently, following the

bills' passage, the New Jersey Commissioner of Human Services

applied to HHS pursuant to 42 U.S.C. § 1315(a) for waivers of the

conflicting provisions of the federal act.

B. THE ADMINISTRATIVE RECORD

The administrative record submitted by the federal

appellees is important for resolution of the legal issues

involved in the case. Therefore, we will present the contents of

the record in some detail, as did the district court.

In mid-May 1992, HHS Assistant Secretary for Children

and Families Jo Anne B. Barnhart met with a coalition of welfare

advocacy groups to receive their commentary on and objections to

New Jersey's proposed waiver application. App. at 41, 43.

Following this meeting, on May 19, 1992, Melville D. Miller,

President of Legal Services of New Jersey, Inc., submitted on

behalf of his organization and 12 other advocacy groups a

memorandum to Assistant Secretary Barnhart that detailed certain

preliminary objections to New Jersey's AFDC waiver request. App.

at 43-68.

On June 5, 1992, DHS submitted its formal application

to HHS for a waiver under section 1315(a) that would authorize,

inter alia, the state's implementation of section 3.5 as well as

the FDP-JOBS program as a five-year experimental project. App.

at 174. The application included a proposal by the agency that

described counterproductive results of current welfare policies

and described how New Jersey's FDP would address these

deficiencies with the goal of ultimately breaking the "cycle of

poverty." App. at 175-288. While DHS conceded that depriving

children of AFDC benefits might seem "harsh," it nevertheless

justified section 3.5 by stating that its purpose was to

encourage parents to be responsible in their decision to have

additional children while receiving welfare. App. at 183-85.

Indeed, DHS explicitly described the choice to have a child while

receiving public support as "irresponsible [and] not socially

desirable." App. at 183. DHS stated that it would offer

financial incentives to encourage AFDC parents with children born

after section 3.5 became effective to offset the benefits they

otherwise would have received through priority for employment and

training services in FDP-JOBS and through the increase in the

earned income disregard. App. at 184-85.

On July 2, 1992, Assistant Secretary Barnhart submitted

a memorandum to then-Secretary Louis Sullivan that formally

recommended approval of New Jersey's waiver request. App. at 40.

Shortly thereafter, on July 9, 1992, the aforementioned advocacy

groups sent a letter to Assistant Secretary Barnhart to

supplement their earlier submission, predicated upon their

"review of the final application submitted by the State, together

with [their] review of the implementing regulations for the FDP

as published in the New Jersey Register . . . ." App. at 36. In

a reply letter dated August 7, 1992, Assistant Secretary Barnhart

informed Legal Services of New Jersey that HHS had considered

their supplemental objections but that the waiver still was

granted, in part because the New Jersey program "represented a

new and innovative approach aimed at promoting self-sufficiency

and reducing long-term welfare dependency." App. at 17.

On July 20, 1992, Secretary Sullivan approved the

waiver to allow the entire FDP to be implemented as a five-year

project under section 1315(a). App. at 18-35. The waiver

allowed DHS to implement section 3.5 statewide commencing on

October 1, 1992. App. at 20-21. Included among the terms and

conditions of the waiver was the requirement that New Jersey

conduct a demonstration project whereby families subject to the

provisions of the FDP would be "randomly assigned to either a

treatment group whose eligibility will be determined based on FDP

provisions, or to a nontreatment (or control) group for whom

eligibility will be determined based on existing program

provisions." App. at 21. DHS was permitted to phase in FDP-

JOBS, first in Essex, Hudson, and Camden counties, and then in

the remaining 18 counties of the state according to a DHS-

sponsored schedule, but "by no later than June 1995." App. at

22. DHS adopted regulations to implement the FDP on September

21, 1992. 24 N.J. Reg. 3352 (Sept. 21, 1992). The regulations

became operative on October 1, 1992, and provide that every child

born after August 1, 1993, to a parent receiving AFDC for any

month within the ten months preceding the birth of the child

"shall be excluded from the eligible unit" and the parent "shall

not be entitled to incrementally increased AFDC benefits as a

result of the birth of a child(ren)." N.J. Admin. Code tit. 10,

§ 82-1.11(a). The only exception to section 3.5's mandate is for

the children of new AFDC applicants that are born within ten

months of their families' application for benefits. N.J. Admin.

Code tit. 10, § 82-1.11(a)(2).

II. VALIDITY OF THE HHS WAIVER UNDER THE APA

Appellants first challenge the district court's

decision to uphold the Secretary's grant of the waiver to New

Jersey under 42 U.S.C. § 1315(a). Appellants claim that the

Secretary's decision to grant the waiver violated the

Administrative Procedure Act ("APA") in two ways. First, they

claim that the Secretary failed to articulate or explain in the

record how her decision complied with the statutory requirements

of 42 U.S.C. § 1315(a) and how it addressed the other statutory

and constitutional issues raised during the administrative

process. Second, the appellants claim that the Secretary

exceeded her authority under section 1315(a) by granting a waiver

that is not likely to assist in promoting the objectives of AFDC,

is imposed beyond the extent necessary to carry out the project,

and is not a valid experimental project.

We note at the outset that a court, in reviewing

informal agency action, "is not empowered to substitute its

judgment for that of the agency." Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824 (1971).

Nor will we presume even to comment upon the wisdom of New

Jersey's effort at welfare reform. Although our inquiry into the

propriety of the Secretary's waiver here "is to be searching and

careful, the ultimate standard of review is a narrow one." Id.

Because we believe that this narrow standard of review forbids us

to disturb the Secretary's decision, we will explain the standard

of review in some detail.

The Supreme Court in Overton Park explained the

contours of judicial review of informal agency action under the

APA. At issue in that case was the Secretary of Transportation's

approval of plans to construct a federally-funded interstate

highway through a city park located near the center of Memphis,

Tennessee. Two statutes prohibited the Secretary from

authorizing the use of federal funds to finance the construction

of highways through public parks absent findings that no

"feasible and prudent" alternative route existed and that there

has been "all possible planning to minimize harm" to the park.

401 U.S. at 405, 91 S.Ct. at 818 (quoting the Department of

Transportation Act of 1966, as amended, 49 U.S.C. § 1653(f), and

the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138). The Court

noted that these statutory provisions were "clear and specific

directives" to the Secretary, operating as "plain and explicit

bar[s] to the use of federal funds for construction of highways

through parks--only the most unusual situations are exempted."

Id. at 411, 91 S.Ct. at 821. "Despite the clarity of the

statutory language," id., the Secretary announced his approval of

the highway project without providing any statement of factual

findings: "He did not indicate why he believed there were no

feasible and prudent alternative routes or why design changes

could not be made to reduce the harm to the park." Id. at 408,

91 S.Ct. at 819.

The Court held that such formal findings were not

required. "Undoubtedly, review of the Secretary's action is

hampered by his failure to make such findings, but the absence of

formal findings does not necessarily require that the case be

remanded to the Secretary." Id. at 417, 91 S.Ct. at 824. The

Court noted that "the Secretary's decision is entitled to a

presumption of regularity," but cautioned that the APA

nonetheless "require[s] the reviewing court to engage in a

substantial inquiry." Overton Park, 401 U.S. at 415, 91 S.Ct. at

823.

The parties do not challenge the district court's

determination that here, as in Overton Park, this "substantial

inquiry" is pursuant to APA "arbitrary or capricious" review:

"[A]gency action must be set aside if the action was 'arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law' . . . ." Id. at 414, 91 S.Ct. at 822

(quoting 5 U.S.C. § 706(2)(A)). The APA thus requires a finding

that the actual choice made was neither arbitrary nor capricious.

To make this finding, the court must confine its review to "the

full administrative record that was before the Secretary at the

time he made his decision," and "consider whether the decision

was based on a consideration of the relevant factors and whether

there has been a clear error of judgment." Id. at 420, 416, 91

S.Ct. at 825, 824.

The Supreme Court, subsequent to Overton Park, has made

it clear that we must remand to the agency "[i]f the record

before the agency does not support the agency action, if the

agency has not considered all relevant factors, or if the

reviewing court simply cannot evaluate the challenged agency

action on the basis of the record before it." Florida Power &

Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 1607

(1985); see also Pension Benefit Guar. Corp. v. LTV Corp., 496

U.S. 633, 654, 110 S.Ct. 2668, 2680 (1990). "We will, however,

uphold a decision of less than ideal clarity if the agency's path

may reasonably be discerned." Motor Vehicle Mfrs. Ass'n v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867

(1983) (internal quotation marks omitted).

The Court's jurisprudence in this area indicates that

the terms of the enabling statute frame judicial review of

informal agency action by (1) establishing the scope of the

agency's authority, and (2) indicating what relevant factors the

agency must consider in making its decision. In this case, the

Secretary is authorized to waive compliance with certain

provisions of the Social Security Act "to the extent and for the

period he [or she] finds necessary" to enable a state to carry

out an AFDC demonstration project if, "in the judgment of the

Secretary, [the project] is likely to assist in promoting the

objectives" of the AFDC program. 42 U.S.C. § 1315(a).

Although here, as in Overton Park, there is "law to

apply," 401 U.S. at 413, 91 S.Ct. at 822, these statutory

requirements demand of the administrator far less than those at

issue in Overton Park. Whereas the administrator in Overton Parkwas

prohibited from authorizing the construction of the highway

through the park without first finding that no "feasible and

prudent" alternative route existed and that there had been "all

possible planning to minimize harm" to the park, id. at 405, 91

S.Ct. at 818, the Secretary here was authorized to grant a waiver

of compliance if she judged that the experiment was "likely to

assist in promoting the objectives" of the AFDC program. 42

U.S.C. § 1315(a). As Chief Judge Friendly observed, writing for

a panel of the Court of Appeals for the Second Circuit in a case

involving challenges to a section 1315(a) waiver:

[C]onsideration of these claims, like those

in [Overton Park], takes us into a type of

judicial review considerably more difficult

to define and exercise than traditional

review of administrative action. We have

here no adversary hearing, no record, no

statement of the grounds for the Secretary's

action, except as these may be inferred from

the papers on which he acted . . . . While

we shall follow the guidelines helpfully

stated in Overton, so far as applicable, we

find . . . merit . . . in the defendants'

position that, purely legal issues apart, it

is legitimate for an administrator to set a

lower threshold for persuasion when he is

asked to approve a program that is avowedly

experimental and has a fixed termination date

than a proposal, like that in Overton Park,

which is irreversible. Moreover, Overton

Park dealt with a situation where an

administrator was required to make two highly

specific determinations on the basis of

explicit, legislatively prescribed

considerations, rather than reach an over-all

`judgment'. In saying this we are not

insensitive to the impact these projects may

have on the lives of thousands of people,

many of whom are in `brutal need[.]'

Aguayo v. Richardson, 473 F.2d 1090, 1103 (2d Cir. 1973)

(citations and footnotes omitted), cert. denied, 414 U.S. 1146,

94 S.Ct. 900 (1974).

The court in Aguayo stated that "the only limitation

imposed on the Secretary was that he must judge the project to be

'likely to assist in promoting the objectives'" of AFDC, and so

the central question before the court was "whether the Secretary

had a rational basis" for making that determination. Id. at 1105

(quoting 42 U.S.C. § 1315(a)). Rejecting the contention that the

administrative record was inadequate concerning many details of

the challenged program, the court found that:

the material furnished by the State in

justifying the programs and applying for

approval adequately covered the policy,

budgetary and logistical essentials, and the

statute--speaking in terms of an otherwise

unfettered `judgment'--does not require that,

before the Secretary approves an experiment,

every i must be dotted and every t crossed.

Id. at 1107. The court concluded: "We are satisfied that the

materials before the Secretary sufficed for 'a consideration of

the relevant factors' by him and that there was no 'clear error

of judgment' on his part." Id. at 1106 (quoting Overton Park,

401 U.S. at 416, 91 S.Ct. at 824).

We find Aguayo persuasive, and agree generally with

that court's statement of the proper standard of review of

section 1315(a) waivers under the APA. To resolve the

appellants' APA challenges, the central question before us is

whether the record disclosed that the Secretary rationally could

have determined that (1) New Jersey's program was "likely to

assist in promoting the objectives" of AFDC, and (2) it was

necessary to waive compliance to the extent and for the period

she did to enable New Jersey to carry out its experiment. See 42

U.S.C. § 1315(a). If our review of the record satisfies us "that

the materials before the Secretary sufficed for a consideration

of the relevant factors by [her] and that there was no clear

error of judgment on [her] part," then we may not disturb the

Secretary's decision. Aguayo, 473 F.2d at 1106 (internal

quotation marks omitted).

Turning to the appellants' specific APA challenges

here, the first contention is that the Secretary failed to

articulate or explain her reasoning in granting the waiver over

the objections of representatives of the appellants during the

administrative process. As explained above, however, the mere

absence of formal findings is not a sufficient basis for reversal

because the Secretary was not required under the APA or section

1315(a) to make findings or to explain her decision to grant New

Jersey's waiver request. See Overton Park, 401 U.S. at 409, 417,

91 S.Ct. at 820, 824; see also Pension Benefit Guar. Corp. v. LTV

Corp., 496 U.S. at 654, 110 S.Ct. 2680 (suggesting that the APA,

by directing a court to ensure that agency action is not

arbitrary or capricious, functionally requires an agency to "take

whatever steps it needs" to create a record sufficient to "enable

the court to evaluate the agency's rationale at the time of

decision"). Our review is limited to considering whether the

Secretary's decision to grant the waiver was arbitrary or

capricious, and we will reverse only "[i]f the record before the

agency does not support the agency action, if the agency has not

considered all relevant factors, or if [we] simply cannot

evaluate the challenged agency action on the basis of the record

before [us]." Florida Power & Light Co., 470 U.S. at 744, 105

S.Ct. at 1607.

We will consider next whether the Secretary rationally

could have determined that the FDP was "likely to assist in

promoting the objectives" of AFDC. As the district court

correctly noted, Title IV of the Social Security Act expressly

provides that the purpose of the AFDC program is to "furnish

financial assistance . . . to needy dependent children and

[their] parents or relatives . . . to help maintain and

strengthen family life . . . ." 42 U.S.C. § 601. The statute

identifies other objectives of the program to include the

encouragement of "self-support and personal independence," and

the promotion of "continuing parental care and protection" for

underprivileged children. Id.

The waiver request submitted by New Jersey delineates

three primary goals of the FDP: (1) breaking the cycle of

poverty; (2) enhancing the role of individual responsibility; and

(3) strengthening and reuniting families. App. at 179. As the

district court found, these aspirations, on their face, conform

to the purposes of AFDC. C.K. v. Shalala, 883 F. Supp. at 1005.

The district court relied upon the following material from the

New Jersey waiver request to support its decision that section

3.5, in particular, is consistent with the objectives of AFDC:

`[o]ne important way the FDP will encourage

decision making is to offer parents a choice

when they have another child while receiving

welfare. A parent will not receive an AFDC

benefit increase to take into account an

additional child.

. . .

However, [the FDP] will offer a financial

incentive for these parents to work which

potentially will more than offset the benefit

they would have otherwise received. This

incentive will equal the current federal

disregards plus the difference between the

disregards and 50 percent of the monthly

payment standard for financial assistance.

These cases will also receive priority for

employment and training services.

This may appear harsh, but it is based on the

same principle that applies to everyone else

in our society. If a person is working and

has a baby, that person's salary is not

automatically increased. Yet, that is

essentially what we are required to do under

[current] federal AFDC regulations. We

believe that if a person is given a choice,

that person will do what is best for the

family which, in this case, is work. We can

best help others by empowering them to help

themselves. The children will continue to be

eligible for Medicaid and increased food

stamps.'

Id.; see also app. at 184-85.

The district court found that the above statement

regarding the benefits ceiling imposed upon AFDC recipients,

along with the provision for the maintenance of Medicaid and food

stamps benefits for the children, "clearly evince that the

state's goals are congruous with § 601's stated purpose of

enabling `parents [or] relatives to attain or retain capability

for the maximum self-support and personal independence consistent

with the maintenance of continuing parental care and

protection.'" C.K. v. Shalala, 883 F. Supp. at 1005 (quoting 42

U.S.C. § 601). The court further stated that it was patent from

its examination of the documents generated by HHS that the

Secretary had reviewed the state's submission regarding section

3.5 and had judged it likely to promote at the very least the

AFDC objective of parental self-sufficiency and autonomy. Id.

The court noted specifically that the terms and conditions

appended to the Secretary's waiver included provisions for

evaluation of the FDP to measure if and to what extent section

3.5 aids AFDC recipients in "slaying their own personal welfare

dragon." Id. at 1005-06. The court held that "the Secretary's

judgment that the state's FDP is consistent with the objectives

of AFDC was predicated on a consideration of the relevant factors

and was not arbitrary or capricious." Id. at 1006.

We agree with the district court's decision. It seems

to us that the stated purposes of the New Jersey program are

likely to pursue the goals, in the aggregate, of AFDC. The

appellants, however, claim that the record as it presently exists

does not enable us to determine whether the Secretary considered

the broad range of issues surrounding the project. We agree with

the district court, however, that the record is satisfactory

insofar as it would allow the Secretary to ascertain whether the

program pursues the goals of AFDC.

In reaching this decision, we agree with the district

court's analysis of prior cases on this issue. Appellants attack

the Secretary's decision for failing to address the specific

objections raised by welfare advocacy groups during the

administrative review process. They argue that we should remand

the action to the Secretary for additional consideration of those

objections in light of Beno v. Shalala, 30 F.3d 1057 (9th Cir.

1994), which found remand appropriate after determining that the

record contained essentially no evidence to indicate that the

Secretary ever took note of the plaintiffs' opposition, but for

one "conclusory" letter to their counsel. Id. at 1074. However,

we, like the district court, decline to find in Beno v. Shalala a

rule that in all cases an administrative record is deficient and

must be supplemented where it does not contain a specific

recitation and refutation of objections submitted in opposition

to a proposed section 1315(a) waiver. See C.K. v. Shalala, 883

F. Supp. at 1006. Here, the record reflects that HHS officials

had at least one meeting with the welfare advocacy groups to

address their concerns about the waiver request. App. at 43.

The record also contains lengthy objections by the groups in

opposition to the proposed waiver, in addition to many letters

submitted by the general public, mostly in opposition to New

Jersey's reform proposal.

We agree with the district court that, given the fact

that prior to making her decision to grant the waiver the

Secretary had before her extensive materials as to the purported

harms the FDP might cause, precedent allows us to give the

Secretary the benefit of the doubt and conclude that she did

consider those objections in approving the waiver. C.K. v.

Shalala, 883 F. Supp. at 1007-08. In this case, as in Aguayo,

the Secretary had sufficient data, including information and

arguments addressing all the pertinent issues, to consider the

factors relevant to her decision. Aguayo, 473 F.2d at 1106. We

will not assume that the Secretary ignored the materials

presented in contravention of the state's position simply

because, in the end, she was not persuaded by them. Thus, we

believe that the record as it stands is satisfactory insofar as

it would allow the Secretary to ascertain whether the program

pursues the goals of the AFDC, and that the Secretary did not

exceed her authority under section 1315(a) in this regard.

However, the appellants also claim that the Secretary

exceeded her authority under section 1315(a) by granting a waiver

that was broader than necessary to carry out the project, and

that is not a valid experimental project. We will address these

two claims in turn. With respect to the first, the district

court decided that approval of that portion of the FDP that

permitted statewide application of section 3.5 while allowing a

three-year phase-in for the enhanced JOBS program was within the

Secretary's discretion. Further, the court decided that it was

not an abuse of discretion for the Secretary to allow New Jersey

to execute the provision aimed at encouraging employment and

treating AFDC families throughout the state equally with the

working poor. C.K. v. Shalala, 883 F. Supp. at 1008. The court

therefore found that the Secretary's approval of waivers for New

Jersey's FDP was not arbitrary and capricious and that there had

been no violation of the APA. Id.

In support of their claim that the scope of the waiver

was unreasonably broad, appellants argue first that the

Secretary's waiver authorized DHS to impose section 3.5 on every

AFDC family across the state, except for 3,000 families randomly

selected for a control group. The waiver directed DHS to gather

data to study section 3.5's effects on these 3,000 families and

the 6,000 families placed into an experimental group. Thus,

appellants argue, HHS allowed the imposition of section 3.5 on

virtually the entire statewide AFDC population of 143,000

families, even though it did not require any research data from

134,000 of them -- a waiver they claim was beyond the extent

necessary to carry out the project.

Next, appellants argue that HHS failed to limit section

3.5's applicability to the extent necessary for its

implementation by approving it without any exceptions. They note

that the section makes no exceptions for those who become

pregnant through rape, incest or failed contraception, or for

those who decide against abortion for religious, ethical, or

medical reasons. Further, in their argument for terming section

3.5 a "Child Exclusion," appellants claim that the section

completely bars eligible children from receipt of AFDC:

[U]nder a family maximum, when the oldest

child in a large family becomes too old to

receive AFDC, the family continues to receive

the same level of benefits because the

younger children's grants have not been

totally rescinded. Under the Child

Exclusion, however, when the oldest child

becomes too old to receive AFDC, those

benefits disappear; the excluded children

never receive benefits because their

eligibility has been completely eliminated.

Similarly, under the family maximum, if a

child in a large family is sent to live with

a relative, the child can receive AFDC

benefits because the child's eligibility was

never rescinded. Dandridge [v. Williams],

397 U.S. 471, 480, 90 S.Ct. 1153, 1159

(1970). Under the Child Exclusion an

excluded child cannot receive benefits no

matter where he or she lives.

Br. at 34.

The federal appellees argue that the broad language of

section 1315(a) allows both the states and the Secretary wide

discretion to conduct a variety of experiments and demonstration

projects. Br. at 24. Thus, they claim that:

Although the Secretary certainly has the

authority to place limits on a proposed

waiver project, and could conceivably abuse

her discretion by approving a project of

truly excessive scope or duration, plaintiffs

lose sight of the proposition that neither

the states nor the Secretary may be held to

`standards of scientific precision' in the

design and scope of such projects.

Br. at 24 (citation omitted). With regard to section 3.5's

applicability state-wide, the federal appellees claim that "the

Secretary's broad § 1315 waiver authority by no means excludes

the possibility of a `demonstration' conducted on a state-wide

basis." Id. at 25. Regarding the appellants' claim that the

waiver was excessively broad "simply because the Secretary did

not impose exceptions to the plan's provisions that the State

itself had not called for," br. at 26, the federal appellees

state that:

This argument loses sight of the basic fact

that this was a demonstration project, geared

to assessing the efficacy of new approaches

to welfare issues. While it may be that some

exceptions of the sort plaintiffs suggest

might eventually prove to be useful

refinements of the approach tested here, the

Secretary acted well within her discretion

under § 1315 in approving this pilot program,

as an initial test of these approaches,

without such exceptions.

Id. at 26.

We are well aware of our proper deference to the

Secretary with regard to the issuance of section 1315 waivers.

However, that deference is not absolute. We also have a duty to

examine her actions to determine whether they were arbitrary or

capricious within the meaning of the APA, 5 U.S.C. § 706(2)(A),

and to examine whether:

the agency has relied on factors which

Congress has not intended it to consider,

entirely failed to consider an important

aspect of the problem, offered an explanation

for its decision that runs counter to the

evidence before the agency, or is so

implausible that it could not be ascribed to

a difference in view or the product of agency

expertise.

Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. at 2867.

An amicus group has brought it to our attention that,

in reviewing subsequent waiver requests for provisions similar to

New Jersey's section 3.5, HHS has required that states include

exceptions that are absent from New Jersey's law. See br. of

Puerto Rican Legal Defense and Education Fund, et al. at 30-31

n.25. The amici claim that on October 12, 1995, Howard Rolston,

Director of the Office of Planning, Research and Evaluation of

HHS, wrote in response to Connecticut's waiver request:

Further, exceptions to the application of the

benefit cap have been required: when the

additional child was conceived as a result of

incest or sexual assault; for a child who

does not reside with his or her parent; and

for a child that was conceived in a month the

family was not receiving AFDC or during some

limited set period following receipt.

Id.

Thus, it seems that the Secretary has required

exceptions to provisions similar to New Jersey's section 3.5 in

subsequent waivers under section 1315. We, however, recognize

that the Secretary, in her discretion, is allowed to change her

mind over time regarding the wisdom of certain programs. Indeed,

experiments are supposed to demonstrate the failings or success

of such programs. Our conviction that the Secretary truly

considered the objections presented to her by the appellants'

representatives in the summer of 1992 thus remains unshaken.

Accordingly, we agree with the position of the appellees that it

is within the Secretary's discretion to determine the wisdom of

welfare reform programs in a piecemeal fashion. She need not

have included the exceptions to the workings of New Jersey's

provision that she later required of Connecticut's program and

she legally is allowed to change her mind. Our inquiry is

limited to whether the Secretary's actions in defining the scope

of New Jersey's waiver were arbitrary or capricious. Since we

cannot so conclude, we will affirm the decision of the district

court that the waivers did not violate the APA.

The appellants' final APA-based argument is that

section 3.5 is not a valid experimental project because it is not

likely to yield useful information, and that the Secretary

therefore acted arbitrarily or capriciously in authorizing it.

Br. at 27. The appellants rely on Beno v. Shalala for the

proposition that "the Secretary must make some judgment that the

project has a research or a demonstration value" -- that is, "she

must determine that the project is likely to yield useful

information or demonstrate a novel approach to program

administration." 30 F.3d at 1069 (noting that "[a] simple

benefits cut, which might save money, . . . would not satisfy

this requirement"). Noting that the record includes no express

finding on this point (which, as we have explained, does not

necessarily require reversal), the appellants further assert that

the Secretary reasonably could not have made the requisite

determination with respect to section 3.5. The appellants rely

on studies, cited in the record, indicating no statistically

significant relationship between AFDC grant size and family size,

and fault the Secretary for granting the waiver in the absence of

"any evidence demonstrating a likelihood that a comparison of

[section 3.5's] treatment and control groups would provided

useful information showing a correlation between AFDC benefit

levels and family size." Br. at 27-28.

We note first that, by its plain terms, section 1315(a)

only requires the Secretary to determine that the proposed

demonstration project is "likely to promote the objectives" of

the AFDC. Even assuming that the Secretary was required to make

the more specific determination that section 3.5 was likely to

yield useful information, however, we believe the record in this

case would support such a determination. Contrary to the

appellants' assertions, the stated purpose of section 3.5 was not

merely to lower fertility rates, but also:

to encourage families who have additional

children while on AFDC to take advantage of

the additional earned income disregard by

seeking employment to help cover the child's

financial needs. It attempts to break the

cycle of welfare dependency as the only means

of acquiring financial resources.

App. at 221. The Secretary found that the goals of FDP included

"break[ing] the cycle of poverty, [and] enhanc[ing] the role of

individual responsibility." App. at 40. In her August 7, 1992

letter to a representative of the appellants during review of the

waiver proposal, Assistant Secretary Barnhart explained that:

the Department approved New Jersey's waiver

application . . . because it represented a

new and innovative approach aimed at

promoting self-sufficiency and reducing long-

term welfare dependency. We will be able to

determine whether the project meets its goals

through the rigorous evaluation that is

required as part of the application's

approval.

App. at 17. The "rigorous evaluation" mandated by the Secretary

requires New Jersey to evaluate the effects of the FDP not only

on family structure -- including birth rates -- but also to

evaluate whether "the FDP help[s] AFDC recipients to achieve

self-sufficiency" and how "the FDP impact[s] AFDC, Food Stamp,

and Medicaid participation and costs." App. at 27 (listing

specific outcome measures).

Thus, it is clear that the Secretary expected the FDP,

including section 3.5, to yield useful information to enable her

"to determine whether the project meets its goals." App. at 17.

We cannot say that this expectation, based on the record before

the Secretary at the time of her decision, was unreasonable.

Accordingly, even assuming that, prior to granting a section

1315(a) waiver, the Secretary must "determine that the project is

likely to yield useful information or demonstrate a novel

approach to program administration," Beno, 30 F.3d at 1069, we

cannot conclude that her decision to grant New Jersey's waiver

request was either arbitrary or capricious.

III. STATUTORY ARGUMENTS

A. THE HUMAN SUBJECTS PROTECTIONS OF 42 U.S.C. § 3515b

42 U.S.C. § 3515b contains safeguards for human

subjects involved in research projects or experiments conducted

with funds appropriated to HHS. The statute provides in relevant

part that no HHS appropriated funds:

shall be used to pay for any research program

or project or any program, project, or course

which is of an experimental nature, or any

other activity involving human participants,

which is determined by the Secretary or a

court of competent jurisdiction to present a

danger to the physical, mental, or emotional

well-being of a participant or subject of

such program, project, or course, without the

written, informed consent of each participant

or subject, or a participant's parents or

legal guardian, if such participant or

subject is under eighteen years of age. The

Secretary shall adopt appropriate regulations

respecting this section.

42 U.S.C. § 3515b. The appellants contend, as they did in the

district court, that section 3.5 presents a real and immediate

danger to themselves and their dependent children because of the

ceiling that it places on the AFDC funds that they receive. They

argue that the Secretary approved section 3.5 without first

determining whether it presented a danger to the recipients and

their dependents and, consequently, whether the program first

required the informed consent of each recipient.

As the district court noted, the Secretary's position

is that HHS's present human subject regulations generally exempt

welfare experiments from review by an Institutional Review Board

("IRB"). C.K. v. Shalala, 883 F. Supp. at 1009. These

regulations, located at 45 C.F.R. Part 46, require that HHS

research on human subjects must include (1) prior review of the

project by an IRB, 45 C.F.R. §§ 46.107-.115 (1995), and (2)

informed consent, 45 C.F.R. §§ 46.116-.124. Section

46.101(b)(5)(i) specifically excludes from these safeguards

research and demonstration projects designed for "public benefit

or service programs," "procedures for obtaining benefits or

services under those programs," and "possible changes in methods

or levels of payment for benefits or services under those

programs." 45 C.F.R. § 46.101(b)(5)(i). Thus, the regulations

provide that, as a general rule, a project that changes or alters

the amount of benefits received will not present a danger such

that the informed consent requirement is triggered, but they do

not foreclose a finding of danger in a specific situation.

The Secretary argues that a waiver under 42 U.S.C. §

1315 by its terms contemplates an estimation in advance of the

danger(s) posed by a particular experimental project. Comments

published with HHS regulations promulgated in 1983 justify the

general exemption for social welfare research as undertakings

"fundamentally different" from the experiments otherwise within

the ambit of the statute. 48 Fed. Reg. 9266 (1983). Moreover,

the Secretary asserts that the comments express the notion that

benefits programs already are subjected to substantial state and

federal review such that requiring an "additional layer of review

for such projects [would be] duplicative and needlessly

burdensome in light of the substantial review process to which

they are already subjected by state and federal officials." Id.at 9266.

It is clear to us that the Secretary's judgment that

AFDC demonstration projects involving changes in benefit levels

need no additional review represents a reasonable construction of

a regulatory statute adopted by the agency charged with

enforcement of that statute. New Jersey's change in how it

allocates AFDC benefits is exactly the kind of "changes in . . .

levels of payment" addressed by the general exemption from IRB

review under 45 C.F.R. § 46.101(b)(5)(i). However, we disagree

with the district court's particular reasoning for holding that

the Secretary complied with the human subjects research statute.

That court found that "it is clear that [section 3.5] falls

within that category of social programs insulated from additional

review such that the Secretary's failure to comport with the

dictates of § 3515b is not actionable." C.K. v. Shalala, 883 F.

Supp. at 1009. We do not agree with the district court that the

Secretary need not comport with the dictates of section 3515b.

In contrast, we believe that the "additional layer of review"

from which HHS exempted public benefits experiments was the

regulatory requirement of IRB review, not the statutory

requirement of review for danger. We do believe, however, that

in the case of waivers under section 1315, the Secretary intended

that her review for danger be subsumed within her more general

review of the programs at issue. As we are satisfied that the

issue was presented to the Secretary by the appellants'

representatives in their objections to New Jersey's plan, and are

satisfied that the Secretary considered the issue in her review

of the waiver, we will affirm the judgment of the district court

on this point.

Appellants also have argued that section 3.5

constitutes experimentation involving pregnant women and fetuses

in contravention of HHS regulations that set forth additional

protections for research, development, and other activities

involving pregnant women, fetuses, or in vitro fertilization. 45

C.F.R. § 46.201 et seq. The district court, however, decided

that section 3.5 "has no effect on the level of benefits received

by a pregnant woman; moreover, the data to be garnered from the

program and evaluated by HHS/DHS does not at all implicate issues

and/or concerns regarding pregnant women and/or fetuses." C.K.

v. Shalala, 883 F. Supp. at 1012. The court therefore decided

that section 3.5 is not directed toward, "nor will it measure,"

the effects on the pregnant or the unborn. Id.

Appellants argue that section 3.5 "involves" pregnant

women, which would trigger IRB review and the other protections

required by Part 46. They claim that the regulations indicate

that pregnant women need not be the exclusive subjects of the

experiment, but that experiments simply must "involve" pregnant

women in order to trigger application of the regulations.

Moreover, appellants are correct in noting that the 1983

regulations adopted to exempt human experimentation that involves

public benefits programs from the requirements of Part 46

specifically do not apply to experimentation involving pregnant

women, fetuses, or in vitro fertilization. 45 C.F.R. §

46.101(i), n.1. Thus, the exemption from IRB review discussed

above does not apply to New Jersey's program if that program is

decided to "involve" pregnant women or fetuses.

The question for us, then, is whether section 3.5

involves pregnant women or fetuses within the meaning of 45

C.F.R. Part 46. More specifically, we must determine whether the

Secretary considered the possible application of the regulations

to New Jersey's program as part of her general review under

section 1315 and ruled out their applicability, or whether she

failed to consider the regulations' effects at all. This

question, of course, is distinct from whether statutory

requirements can be waived, as it instead focuses on whether the

alleged requirement is applicable in the first place.

Welfare advocacy groups did raise the possible

applicability of the more general regulations applying to

experimentation involving human research subjects in their

objections to New Jersey's waiver application, although there is

no specific reference in the administrative record to the

possibility that the regulations aimed at experimentation

involving pregnant women and fetuses might apply to New Jersey's

program. However, both the general regulations relating to

experimentation with human research subjects and the specific

regulations pertaining to pregnant women and fetuses appear in 45

C.F.R. Part 46, the citation provided by the welfare advocacy

groups in their objections to the waiver. App. at 60.

Again, our standard of review requires that we give the

Secretary the benefit of the doubt and that we assume she was

familiar with the structure of the regulations issued by her own

agency, particularly in light of the fact that welfare advocacy

groups provided the citation for the more general regulations to

her. Thus, we find that the Secretary's consideration of the

regulations pertaining specifically to experimentation involving

pregnant women and fetuses was subsumed within her review under

section 1315. Furthermore, we defer to her implicit judgment

that section 3.5 does not involve pregnant women or fetuses. We

determine, too, that we also would conclude in a review of the

matter without deference to the Secretary that section 3.5 does

not involve pregnant women or fetuses within the meaning of 45

C.F.R. Part 46. Therefore, we will affirm the judgment of the

district court on this point.

B. THE SOCIAL SECURITY ACT

Appellants also challenge section 3.5's validity based

upon its asserted incompatibility with the Social Security Act.

1. Assistance to all Eligible Individuals

Section 402 of Title IV of the Social Security Act

requires that a state AFDC plan must:

provide that all individuals wishing to make

application for aid to families with

dependent children shall have [the]

opportunity to do so, and that aid to

families with dependent children shall . . .

be furnished with reasonable promptness to

all eligible individuals . . . .

42 U.S.C. § 602(a)(10)(A). The appellants claim that since

section 3.5 is a state law that denies AFDC benefits to

individual children who are eligible for AFDC under federal

standards, it violates section 602(a)(10)(A).

The district court rejected the appellants' claim,

stating that they had disregarded "one of the central tenets of

the AFDC program, namely that `eligibility under the AFDC program

has historically been premised upon the household as the basic

unit of assistance.'" C.K. v. Shalala, 883 F. Supp. at 1010

(citations omitted). The court stated that where a household is

receiving AFDC, all of the individuals within that household are

receiving it, and that payments to one individual in a family

generally are viewed as beneficial to the entire family. Id.

The court thereafter concluded that while appellants had referred

to section 3.5 as the "Child Exclusion" throughout their papers,

that appellation is inaccurate:

Under New Jersey's program, no child is

excluded from benefits; rather, the

additional child born to the AFDC recipient

household simply partakes of the assistance

already received by that household at the

same monetary level. Thus, the Family Cap

here is analogous to the maximum family

payment upheld . . . by the Supreme Court in

Dandridge v. Williams, 397 U.S. 471, 90 S.Ct.

1153 (1970).

Id. The court analogized the New Jersey provision at issue in

this case to that involved in Dandridge, stating that, like the

maximum benefits payment in that case, section 3.5 imposes a

benefits ceiling on the AFDC household. Any additional child

born while that AFDC family is receiving payments simply will be

included in the assistance unit and share in the benefits

accorded the rest of the household. Thus, as in Dandridge, while

the level of cash assistance flowing to the household will not

increase with the birth of the additional child, the court found

that it cannot be said that the additional child is denied

benefits in toto. Id. Consequently, the district court held

that there was no violation of section 602(a)(10)(A). Id. at

1010-11.

Appellants argue that, unlike a family maximum, section

3.5 completely bars particular eligible children from receipt of

AFDC. They claim that under a family maximum, such as the

program involved in Dandridge, when the oldest child in a large

family becomes too old to receive AFDC, the family continues to

receive the same level of benefits because the younger children's

grants have not been rescinded totally. Under section 3.5,

however, appellants argue that when the oldest child becomes too

old to receive AFDC, those benefits disappear; the excluded

children never receive benefits because their eligibility has

been eliminated completely. Further, under the family maximum,

appellants note, if a child in a large family is sent to live

with a relative, the child can receive AFDC benefits because the

child's eligibility never was rescinded. Under section 3.5,

however, they note that an "excluded child" cannot receive

benefits no matter where he or she lives. Br. at 34.

Earlier in this opinion, we noted that the Secretary

has required of section 1315 waivers occurring subsequent to New

Jersey's request that certain exceptions be made in provisions

similar to section 3.5. Of particular note here is the

Secretary's requirement of an exception in the case of "a child

who does not reside with his or her parent." See br. of Puerto

Rican Legal Defense and Education Fund, et al. at 30-31 n.25;

discussion supra. As we held there, we note again that it is

within the Secretary's discretion to determine the wisdom of

welfare reform programs in a piecemeal fashion. She need not

have required the exceptions to New Jersey's program that she

required of later programs. Thus, we agree with the district

court that the AFDC benefits unit should be viewed as the

household, and that, in general, much like the family maximum at

issue in Dandridge, New Jersey's provision therefore does not

deprive otherwise eligible individuals of benefits in violation

of section 602(a)(10)(A).

There is, however, undeniable tension between the

Court's conclusion in Dandridge (that, "[s]o long as some aid is

provided to all eligible families and all eligible children, the

statute itself is not violated," 397 U.S. at 481, 90 S.Ct. at

1159), and the potential operation of section 3.5 to deprive an

otherwise eligible family with dependent children of any AFDC

benefits -- rather than merely forcing the family to share a

constant amount of benefits among more family members as in

Dandridge. If, for example, a caregiver does not qualify for

additional AFDC benefits himself, and only the affected child

lives with the caregiver, the otherwise "eligible" family of two

would receive no AFDC money at all in apparent violation of

section 602(a)(10)(A).

Despite this tension with the Court's language in

Dandridge, the FDP does not violate section 602(a)(10) because

the Secretary expressly waived compliance with section 602(a)

generally in order to allow New Jersey to implement the FDP's

method for determining the proper amount of assistance, which

necessarily includes the possibility mentioned above that an

eligible family will receive zero benefits.

In relevant part, the waiver provisions of the Social

Security Act explicitly provide that "the Secretary may waive

compliance with any of the requirements of section . . . 602 . .

. of this title . . . to the extent . . . he [or she] finds

necessary to enable [the State] . . . to carry out [its]

project." 42 U.S.C. § 1315(a)(1). Thus, compliance with section

602(a)(10) is waivable. Moreover, in granting New Jersey's

waiver request, the Secretary explicitly waived compliance with

section 602(a) to allow for "Differential Payments -- To allow

the State to implement different methods for determining the

amount of assistance for families in the FDP treatment group and

the control group." App. at 34. An eligible family in the

"control group" would be paid according to the standard AFDC

program, and thus always would receive some benefits. An

otherwise eligible family subject to the FDP, by contrast, always

will receive the standard amount less the incremental amount due

for the affected child -- which may work out to be zero if the

family unit includes no other eligible children, parent or

caregiver. Such "differential payments" are precisely what the

Secretary permitted in her general waiver of the contrary

portions of section 602(a).

The general section 602(a) waiver indicates the

Secretary's intent to allow New Jersey to provide zero additional

money for an affected child, even if that means that some family

units may receive no AFDC money at all. The appellants argue

that the Secretary can waive compliance with section 602(a)(10),

if at all, only by explicitly referencing subsection (10) because

payment of benefits to eligible families is at the "heart" of

AFDC. But the differential payments are at the "heart" of

section 3.5. Although the Secretary could have cited each

relevant subsection of section 602(a) specifically in the waiver

authority document, such specificity was not necessary: the

waiver provisions clearly indicate the Secretary's intent to

waive compliance with subsection 602(a)(10) insofar as that

provision is inconsistent with the zero-additional-benefits

provisions of the FDP. See Aguayo, 473 F.2d at 1108 (concluding,

where it was clear that the Secretary intended to waive

compliance with a particular section, that "[i]t would elevate

form over substance to issue a temporary injunction against the

operation of these projects until the Secretary went through the

formality of adding [the section] to the list of sections

compliance with which was being waived").

In sum, we hold that the Secretary waived compliance

with section 602(a)(10) insofar as to allow New Jersey to

implement the FDP, and accordingly the program does not violate

that section. We will affirm this decision of the district

court.

2. Equitable Treatment Regulations

The appellants next assert that section 3.5 violates

the principle that a state must treat eligible individuals and

groups of residents on an equitable basis. HHS regulations

provide that "eligibility conditions" in a state plan "must not

exclude individuals or groups on an arbitrary or unreasonable

basis, and must not result in inequitable treatment of

individuals or groups in [ ] light of the provisions and purposes

of the public assistance titles of the Social Security Act." 45

C.F.R. § 233.10(a)(1). Appellants claim that additional children

born to AFDC recipients are denied benefits under section 3.5

based solely on what the state has deemed the "irresponsible"

behavior of their parents. The district court, however, held

that the section "does not operate to deny any child benefits,

but instead simply requires that child to share in the cash

payments allotted to his or her particular AFDC household." C.K.

v. Shalala, 883 F. Supp. at 1011.

Appellants also claim that while states are free to set

their own standard of need, their "determination of need and

amount of assistance for all applicants and recipients [must] be

made on an objective and equitable basis." 45 C.F.R. §

233.20(a)(1). They argue that section 3.5 violates this

regulation because it affords different levels of cash assistance

to families of identical size and need based upon a parent's

decision to have a child while in receipt of AFDC. Br. at 35.

The district court found no violation of this regulation, holding

that "[t]he cap applies equally to all AFDC recipients who decide

to conceive and give birth to another child since it went into

effect," C.K. v. Shalala, 883 F. Supp. at 1011, and that "[t]he

fact that there may be different levels of assistance given to

families of equal size is potentially offset by the additional

earned income disregards available to the affected families."

Id.

We agree with the judgment of the district court that

section 3.5 does not violate the HHS regulations regarding

equitable treatment of aid recipients. Therefore, we will affirm

the decision of that court with regard to this argument.

3. Work-Related Programs

Pursuant to 42 U.S.C. §§ 681-87, states participating

in the AFDC program must establish and operate a "job

opportunities and basic skills program," or JOBS. 42 U.S.C. §

682. The services and activities of JOBS include educational

activities, job skills training, job readiness activities to help

prepare participants for work, job development and job placement,

job searches, on-the-job training, work supplementation programs,

and community work experience. 42 U.S.C. § 682(d)(1)(A). In

addition, a state also may offer post-secondary education in

appropriate cases as well as such other education, training and

employment as it may deem necessary. 42 U.S.C. § 682(d)(1)(B).

The statute provides that, when assigning AFDC recipients to a

JOBS program activity, a state must assure that "the conditions

of participation are reasonable, taking into account in each case

the proficiency of the participant and the child care and other

supportive services needs of the participant." 42 U.S.C. §

684(a)(4). This requirement applies to "any work-related

programs and activities under this part, and under any other

work-related programs and activities authorized . . . under

section 1315 of this title." 42 U.S.C. § 684(e). Appellants

claim that New Jersey here failed to assure the reasonableness of

conditions of participation in FDP-JOBS by parents of children

subject to section 3.5. Their argument is that:

all parents of excluded children must

participate in FDP-JOBS whether or not the

conditions are `reasonable;' such parents

must participate whether or not they have the

capacity to work, are disabled, can find

work, have the ability and proficiency to

participate in FDP-JOBS, have a need for

child care and other supportive services in

order to work or participate in FDP-JOBS, or

have a need to remain home and care for a

newborn child.

Br. at 37.

With respect to this claim of the appellants, we agree

with the district court that section 684 establishes that the

provision is intended to regulate job placement programs, but not

changes in benefit levels or work incentives based upon the

relaxation of earned income limits. As the court stated, "[a]

benefit cut, no matter what its purpose, is not a `program' or

`activity' offered by the State to assure that needy families

obtain education, training and employment." C.K. v. Shalala, 883

F. Supp. at 1012 (quoting Beno v. Shalala, 853 F. Supp. 1195,

1215 (E.D. Cal. 1993)). We agree with the district court's

assessment of this issue and find no need to alter this part of

its opinion.

4. Family Planning Services

Appellants claim that section 3.5 is a "family planning

service" subject to section 402(a)(15) of the Social Security

Act, 42 U.S.C. § 602(a)(15), which requires state AFDC programs

to offer voluntary plans "for preventing or reducing the

incidence of births out of wedlock and otherwise strengthening

family life." Section 3.5, they argue, is a compulsory family

planning service since it seeks to deter pregnancy in all women

who receive AFDC. Thus, they argue that the section does not

afford AFDC recipients the information and opportunity to make

informed, voluntary family planning choices, but imposes a

coercive family planning regime in violation of section

602(a)(15). Br. at 38.

The district court did not agree with the appellants'

claims. The court noted that section 602(a)(15), by its terms,

is directed at requiring a state to provide birth control

services to those AFDC recipients who seek them. It stated that

section 3.5, however, addresses the problem of "births out of

wedlock" by adjusting benefit levels. Thus, while some AFDC

recipients may avail themselves of family planning services

provided under section 602(a)(15) given the imposition of the

cap, the court found that the cap itself cannot be construed as

one of those services. While not commenting on the district

court's assessment of section 3.5 as addressing "births out of

wedlock," we agree with the court's decision that New Jersey's

provision is not a family planning service within the meaning of

section 602(a)(15). Thus, we will affirm this holding of that

court.

IV. CONSTITUTIONAL ARGUMENTS

Finally, appellants argue that section 3.5

impermissibly interferes with their rights to due process and

equal protection of the laws. They argue that the cap is

irrational and illegitimate because it penalizes children for the

behavior of their parents. In addition, they assert that the

section should be subjected to, and fails, strict scrutiny

review, since the state's "overriding" purpose in enacting the

section (deterring childbirth by welfare recipients) is an

illegitimate goal sought to be realized by broad and overly

intrusive means. The district court decided that New Jersey's

welfare cap is rationally related to a legitimate governmental

purpose, in that the state's interests in giving AFDC recipients

the same structure of incentives as working people, promoting

individual responsibility, and strengthening and stabilizing the

family unit are clearly legitimate. C.K. v. Shalala, 883 F.

Supp. at 1013. Further, the court decided that the case does not

present a situation where New Jersey unduly has burdened the

procreative choice of the plaintiff class, since section 3.5 "in

no way conditions receipt of benefits upon plaintiffs'

reproductive choices." Id. at 1014. Accordingly, the court

found that section 3.5 does not infringe appellants' procreative

rights.

We have nothing to add to the district court's opinion

on this point except to observe that it would be remarkable to

hold that a state's failure to subsidize a reproductive choice

burdens that choice. In short, there are no constitutional

implications when the state does not pay a benefit to parents who

have a child that it would not pay to parents who did not have a

child. Rather than burdening the procreative choice of the

plaintiff class, section 3.5 is neutral with respect to that

choice.

Lastly, the court found that New Jersey's welfare

reform efforts are rationally related to the legitimate state

interests of "altering the cycle of welfare dependency that it

has determined AFDC engenders in its recipients as well as

promoting individual responsibility and family stability." Id.at 1015.

We see no reason to disturb these holdings of the

district court, and will therefore affirm its decision as

described herein.

V. CONCLUSION

For all the foregoing reasons, we will affirm the

judgment of the district court.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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