C.K. v. New Jersey Department of Health & Human ServicesC.K. v. New Jersey Department of Health & Human Services
Case Information
*2
BEFORE: STAPLETON, GREENBERG, аnd 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 *3 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 *4 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 Lеgal 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 *6 Associаtion 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,
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
Helen L. v. DiDario,
I. FACTUAL BACKGROUND
A. STATUTORY BACKGROUND
AFDC is a joint federal and state program established
under Title IV-A of 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,
[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 . . . .
In 1962, Congress added section 1115 of the Social
Security Act, now
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 . . . .
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, nоw known as the Family Development Act,
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.
To assist recipients in pursuing their educational and
vocational goals, the FDP provides specific benefits, such as
financial assistance for higher education (
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.
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
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
oсcur 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
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
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 appliсation 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
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
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,
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.
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,
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,
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,
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
provisiоns 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.
Although here, as in Overton Park, there is "law to
apply,"
[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
statеd 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,
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
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,
We find Aguayo persuasive, and agree generally with
that court's statement of the proper standard of review of
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
We will consider next whether the Secretary rationally
could have determined that the FDP was "likely to assist in
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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
financiаl assistance . . . to needy dependent children and
[their] parents or relatives . . . to help maintain and
strengthen family life . . . ."
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,
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 emplоyment 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
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 proсess. They argue that we should remand
the action to the Secretary for additional consideration of those
objections in light of Beno v. Shalala,
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
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,
However, the appellants also claim that the Secretary
exceeded her authority under
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: *18 [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],
(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
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
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
without such exceptions.
Id. at 26.
We are well aware of our proper deference to the
Secretary with regard to the issuance of
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,
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,
An amicus group has brought it tо 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
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."
We note first that, by its plain terms,
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 *21 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
III. STATUTORY ARGUMENTS
A. THE HUMAN SUBJECTS PROTECTIONS OF
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 rеgulations respecting this section.
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,
The Secretary argues that a waiver under
levels of payment" addressed by the general exemption from IRB
review under
Supp. at 1009. We do not agree with the district court that the
Secretary need not comport with the dictates of
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
Appellants also have argued that section 3.5
constitutes experimentation involving pregnant women and fetuses
*23
in contravention of HHS regulations that set forth additional
protections for research, development, and other activities
involving pregnant women, fetuses, or in vitro fertilization.
v. Shalala,
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.
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
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 оbjections 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
*24
pregnant women and fetuses was subsumed within her review under
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 . . . .
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,
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,
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 benеfits
*25
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
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
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,"
Despite this tension with the Court's language in
*26
Dandridge, the FDP does not violate
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."
The general
In sum, we hold that the Secretary waived compliance
with
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."
Appellants also claim that while states are free to set
their own standard of need, their "determination of need and
amount of assistаnce for all applicants and recipients [must] be
made on an objective and equitable basis."
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,
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
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."
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
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,
The district court did not agree with the appellants'
claims. The court noted that
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.