Brown v. Secretary of Health & Human Services

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-2369

ELLEN BROWN, ET AL.,

Plaintiffs, Appellees,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Martin F. Loughlin, Senior U.S. District Judge]

Before

Breyer,* Chief Judge,

Campbell, Senior Circuit Judge,

and Cyr, Circuit Judge.

Christine N. Kohl, Attorney, Appellate Staff, Civil Division,

U.S. Department of Justice, with whom Frank W. Hunger, Assistant

Attorney General, Paul M. Gagnon, United States Attorney, and Barbara

C. Biddle, Attorney, Appellate Staff, Civil Division, U.S. Department

of Justice, were on brief for appellant.
Victoria Pulos with whom Deborah Schachter and New Hampshire

Legal Assistance were on brief for appellees.

January 17, 1995

*Chief Judge Breyer heard oral argument in this matter, but did not
participate in the drafting or the issuance of the panel's opinion.
The remaining two panelists therefore issue this opinion pursuant to
28 U.S.C. 46(d).

CAMPBELL, Senior Circuit Judge. This is a class

action challenging as arbitrary and capricious an Aid to

Families With Dependent Children ("AFDC") regulation

promulgated by the Secretary of Health and Human Services

("HHS") in 1982. The regulation, called the "automobile

resource exemption," limits to $1,500 the equity value of the

automobile a family may own before the automobile's equity

value affects the family's qualification to receive AFDC

benefits. 45 C.F.R. 233.20(a)(3)(i)(B)(2) (1993). The

district court denied defendant's motion for summary judgment

and granted plaintiffs' motion for summary judgment, striking

down the regulation as arbitrary and capricious. We reverse.

I.

AFDC is a joint federal-state program designed to

provide financial assistance to needy, dependent children and

their families. 42 U.S.C. 601 (1988). Although states, as

the primary administrators of the program, are given broad

discretion to define benefit levels and eligibility

requirements, state programs must conform with federal laws

and regulations in order to receive matching federal funds.

Id. Federal HHS regulations set maximum limits on the

resources a family may own and still qualify to receive AFDC

benefits. Under the regulations in effect before 1975,

families with more than $2,000 in real and personal property

did not qualify for AFDC benefits. 45 C.F.R. 233.20 (a)(3)

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(1974). These early regulations exempted from the

calculation of family resources the value of certain assets,

including, without limitation, the value of one automobile.

Id.

In 1975, the Secretary of the Department of Health,

Education and Welfare (the predecessor to HHS) amended the

regulations and, for the first time, attempted to place a cap

on the automobile exemption. The new regulation set the cap

at $1,200 retail market value any market value in an

automobile exceeding the $1,200 limit would now count toward

the overall resource limit. 40 Fed. Reg. 12,507 (1975). The

D.C. Circuit, however, subsequently struck down the

regulation in National Welfare Rights Org. v. Mathews, 553

F.2d 637, 643 (D.C. Cir. 1976).1 Thus after 1976, the

automobile exemption was once again governed by the prior

version of the regulation, which completely exempted the

value of one automobile from the calculation of family

resources. See 41 Fed. Reg. 30,647 (1976).

In 1981, Congress enacted the Omnibus Budget

Reconciliation Act of 1981 ("OBRA"), which amended the AFDC

1. Although the court found that the governing statute
authorized the Secretary to set resource limits for
participation in the AFDC program, the court held the
regulation invalid because: (1) the Secretary improperly
based the limit on "market" rather than "equity" value; and
(2) the Secretary failed to articulate a sufficient factual
basis for the $1,200 figure. National Welfare Rights Org.,

533 F.2d at 648-49.

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program by statutorily reducing from $2,000 to $1,000 the

maximum resource limit for AFDC recipients.2 Pub. L. No.

97-35, 95 Stat. 357, 843 (1981); 42 U.S.C. 602(a)(7)(B)

(Supp. V 1993). The purpose of this amendment was to cut

costs and to limit AFDC benefits to only the most needy. See

Champion v. Shalala, 33 F.2d 963, 967 (8th Cir. 1994). At

the same time, Congress allowed states to exclude from

calculation of the overall resource limit "so much of the

family member's ownership interest in one automobile as does

not exceed such amount as the Secretary may prescribe." 42

U.S.C. 602(a)(7)(B)(i) (Supp. V 1993) (emphasis added).

Pursuant to this delegation of authority, the Secretary of

HHS in 1982 promulgated a regulation setting the automobile

resource exemption at $1,500. 45 C.F.R.

233.20(a)(3)(i)(B)(2) (1993).3 Any equity value4 in an

2. States were still permitted, however, to set resource
limits at a lower level. 42 U.S.C. 602(a)(7)(B) (Supp. V
1993).

3. The full text of the challenged regulation reads:

The amount of real and personal property
that can be reserved for each assistance
unit shall not be in excess of one
thousand dollars equity value (or such
lesser amount as the State specifies in
its State plan) excluding only: . . .

(2) One automobile, up to $1,500 of
equity value or such lower limit as the
State may specify in the State plan; (any
excess equity value must be applied
towards the general resource limit
specified in the State plan.

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automobile that exceeded this amount would now be counted

toward the $1,000 overall resource limit, which, if exceeded,

leaves a family ineligible for AFDC.

The automobile resource exemption has since

remained at $1,500, although it has received some attention

from both Congress and the Secretary. In 1988, the House of

Representatives passed, as part of the Family Support Act of

1988, Pub. L. No. 100-485, 102 Stat. 2343, 2356 (1988), a

bill containing a provision that would have allowed some

states to experiment with a $4,500 automobile resource

exemption. The Senate version of the bill did not contain

such a provision. The conference committee adopted the

Senate version, but directed the Secretary to review the

automobile resource regulations "and to revise them if he

determines revision would be appropriate." H.R. Conf. Rep.

No. 998, 100th Cong., 2d Sess. 189 (1988), reprinted in 1988

U.S.C.C.A.N. 2879, 2976-77. After reviewing the regulation,

the Secretary in 1991 declined to revise the figure. 55 Fed.

Reg. 44,524 (1990); 56 Fed. Reg. 17,358 (1991). In a 1992

letter to Senator Dennis DeConcini, the Secretary explained

that increasing the exemption to $3,000 would have cost the

federal government more than $200 million and would have

45 C.F.R. 233.20(a)(3)(i)(B) (1993).

4. The regulations define "equity value" as "fair market
value minus encumbrances (legal debts)." 45 C.F.R. 233.20
(a)(3)(ii)(F)(4) (1993).

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required corresponding offsets in other programs. See

Frederick v. Shalala, 862 F. Supp. 38, 40 (W.D.N.Y. 1994).

II.

Plaintiffs are a class of New Hampshire residents

who own vehicles with equity values in excess of $1,500 and,

but for the Secretary's automobile resource regulation, would

be entitled to receive AFDC benefits. The named plaintiffs

in this case, Ellen Brown and Mary Smith5, are two mothers

on low incomes who were denied AFDC benefits in 1991 and

1992, respectively, because they owned vehicles whose equity

values exceeded the automobile resource exemption, thus

placing them over the general resource limit. Brown owned a

1989 Toyota Celica, Smith a 1990 Mercury Topaz. Both Brown

and Smith live in rural areas of New Hampshire, where there

is no adequate public transportation and an automobile is a

practical necessity.

Plaintiffs filed suit against the Secretary of HHS,

challenging the $1,500 automobile resource exemption as

arbitrary and capricious on two grounds. They argued: (1)

that the regulation was arbitrary and capricious when

promulgated in 1982; and (2) that the Secretary's failure to

adjust the figure for inflation has made it arbitrary and

capricious today. Plaintiffs sought declaratory and

5. These are not their real names. The district court
granted named plaintiffs leave to use pseudonyms in order to
protect their privacy.

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injunctive relief. Since there were no disputed issues of

materialfact,thepartiesfiled cross-motionsforsummaryjudgment.

The district court denied the Secretary's motion

for summary judgment and granted plaintiffs' motion for

summary judgment, finding the $1,500 automobile resource

exemption arbitrary and capricious today given the

Secretary's failure to adjust it for inflation. The court

wrote: "To use a fourteen-year old standard as a criteria

[sic] of the equity in a motor vehicle in 1979 is an

anachronism considering the purchasing power of a dollar

today." The court enjoined the Secretary from further

relying upon the regulation to deny benefits to otherwise-

eligible New Hampshire residents. The Secretary now appeals.

III.

The issues in this appeal have been the subject of

considerable litigation in the federal courts. The two

courts of appeals that have considered the regulation have

upheld it. Champion v. Shalala, 33 F.3d 963 (8th Cir. 1994);

Falin v. Sullivan, 776 F. Supp. 1097 (E.D. Va. 1991), aff'd

per curiam, 6 F.3d 207 (4th Cir. 1993), cert. denied, 114 S.

Ct. 1551 (1994). Four district courts have also upheld the

regulation. Noble v. Shalala, No. 92-N-2495 (D. Colo. Nov.

30, 1994); Frederick v. Shalala, 862 F. Supp. 38 (W.D.N.Y.

1994); Gamboa v. Rubin, No. 92-00397, 1993 WL 738386 (D.

Hawaii Nov. 4, 1993), appeal filed, No. 94-15302 (9th Cir.

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Jan. 26, 1994); Hall v. Towey, No. 93-1780-CIV-T-21B (M.D.

Fla. Dec. 10, 1993). Two district courts, not including the

district court in this case, have struck down the regulation.

Lamberton v. Shalala, 857 F. Supp. 1349 (D. Ariz. 1994);

Hazard v. Sullivan, 827 F. Supp. 1348 (M.D. Tenn. 1993),

appeal filed sub nom. Hazard v. Shalala, No. 93-6214 (6th

Cir. Sept. 17, 1993).

We find the opinions of the Fourth Circuit in Falin

and Eighth Circuit in Champion to be persuasive. We agree

with them that the regulation was not arbitrary and

capricious when promulgated and is not arbitrary and

capricious today.

A. Regulation Valid When Promulgated

Our standard of review is very deferential. In

enacting OBRA, Congress explicitly delegated to HHS the

authority to set the figure for the automobile resource

exemption; the states could exempt only "so much of the

family member's ownership interest in one automobile as does

not exceed such amount as the Secretary may prescribe." 42

U.S.C. 602(a)(7)(B)(i) (Supp. V 1993) (emphasis added). No

standard was legislatively set to guide the Secretary in

prescribing the exemption. Where the delegation of authority

is this complete, a court can overturn the regulation only if

it is "arbitrary, capricious, or manifestly contrary to the

statute." Chevron v. Natural Resources Defense Council, 467

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U.S. 837, 844, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984); see

5 U.S.C. 706(2)(A) (1988).

If Congress has explicitly left a gap for
the agency to fill, there is an express
delegation of authority to the agency to
elucidate a specific provision of the
statute by regulation. Such legislative
regulations are given controlling weight
unless they are arbitrary, capricious, or
manifestly contrary to the statute.

Chevron, 467 U.S. at 843-44; see McDonald v. Secretary of

Health and Human Serv., 795 F.2d 1118, 1122 n.5 (1st Cir.

1986). A regulation will be arbitrary and capricious where:

the agency 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 v. State Farm Mut. Auto. Ins., 463

U.S. 29, 43, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983). In

reviewing a regulation, the court may not substitute its own

judgment for that of the agency. Rather, the court must

defer to the agency if the agency's findings have a rational

basis and the regulation is reasonably related to the

purposes of the enabling legislation. Bowman Transp., Inc.

v. Arkansas-Best Freight Sys., 419 U.S. 281, 290, 95 S. Ct.

438, 42 L. Ed. 2d 447 (1974); Conservation Law Found. v.

Secretary of the Interior, 864 F.2d 954, 957-58 (1st Cir.

1989). As this is an appeal from summary judgment, review of

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the district court's determination is de novo. Gaskell v.

Harvard Coop. Soc'y, 3 F.3d 495, 497 (1st Cir. 1993).

In setting the regulation in 1982, the Secretary

relied almost exclusively upon a study of food stamp

recipients6 conducted in 1979.7 The study purported to

show that approximately 96 percent of food stamp recipients

who owned an automobile had an equity value in that

automobile of under $1,500. The Secretary reasoned that the

food stamp survey provided an adequate picture of the equity

ownership of AFDC recipients, since there was a substantial

overlap in the populations of food stamp and AFDC recipients.

Moreover, the percentage may even have been greater than 96

percent in the AFDC population, since food stamp recipients

are, on average, more affluent than AFDC recipients. The

Secretary explained:

We chose $1,500 as the maximum equity
value for an automobile on the basis of a
Spring 1979 survey of food stamp

6. The food stamp program is governed by 7 U.S.C. 2011
et seq. (1988).

7. The study was titled: Assets of Low Income Households:

New Findings on Food Stamp Participants and Nonparticipants,

Report to the Congress, January 1981, Food and Nutrition
Service, U.S. Department of Agriculture. When AFDC
recipients first challenged the instant regulation, the
Secretary was unable to produce a copy of the food stamp
study. Accordingly, the district court in that first case
found the regulation arbitrary and capricious, given the lack
of supporting data in the record. We Who Care, Inc. v.

Sullivan, 756 F. Supp. 42, 46-47 (D. Me. 1991). The

Secretary has since been able to produce the study, and
subsequent challenges have included the study in the record.

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recipients. Data from that survey
suggest that 96 percent of all food stamp
recipients who own cars had equity value
in them of $1,500 or less. In that the
Federal maximum limit should be set
within the range of the vast majority of
current recipients and given that the
food stamp population tends to be, on
average, more affluent than AFDC
recipients, this limit appears reasonable
and supportable.

47 Fed. Reg. 5648, 5657-58 (1982).

1. Failure to Consider Other Factors Did Not Violate

Congressional Intent

Plaintiffs argue that the regulation, even when

first adopted in 1982, was arbitrary and capricious because

the Secretary, in considering only whether the "vast majority

of current recipients" fell within the new limit, failed to

consider other important factors in setting the $1,500 limit.

Plaintiffs concede that OBRA was enacted primarily to reduce

cost and limit the number of AFDC recipients, but argue that

the court must also look to AFDC's broader purposes of

promoting employment and fostering self-sufficiency. See 42

U.S.C. 601 (1988); Shea v. Vialpando, 416 U.S. 251, 253, 94

S. Ct. 1746, 40 L. Ed. 2d 120 (1974). In light of these

purposes, plaintiffs read OBRA's delegation of authority to

the Secretary to set the automobile resource exemption as

indicating that Congress intended to allow each recipient to

retain a safe, reliable vehicle. According to plaintiffs,

the Secretary was obliged to consider such factors as: (1)

the costs of used cars; (2) regional conditions that impact

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transportation needs; (3) the importance of vehicles in

enabling families to become self-sufficient. In considering

only whether the "vast majority" of AFDC recipients would be

affected by the new figure, plaintiffs argue, the Secretary

promulgated a regulation that was inconsistent with

congressional intent. See State Farm, 463 U.S. at 43.

We do not agree. We have little to add, on this

point, to the opinion of the Eighth Circuit and to the

opinion of the district court in Falin, 776 F. Supp. 1097, on

which the Fourth Circuit rested its judgment. Falin, 6 F.3d

at 207. OBRA delegates to the Secretary, and to no one else,

the unqualified authority to prescribe the amount of the

automobile resource exemption. 42 U.S.C. 602(a)(7)(B)(i)

(Supp. V 1993). Congress made no express provision for the

standards that the Secretary was to apply when establishing

the amount of the automobile exemption. Nowhere in the

statute did Congress require the Secretary to ensure to all

AFDC recipients the right to a "safe and reliable" vehicle,

or to pay special attention to the other policy objectives

urged by plaintiffs. Congress left it to the Secretary to

decide what policies should be given priority when figuring

the exemption.

The plain purpose of OBRA, moreover, was to cut

costs by limiting the number of AFDC recipients to only those

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who were most needy.8 To that end, Congress cut the overall

resource limit in half, from $2,000 to $1,000. At the same

time, the value of the automobile, previously completely

exempted, would now be limited by regulation. S. Rep. No.

139, 97th Cong., 1st Sess. 503 (1981), reprinted in 1981

U.S.C.C.A.N. 396, 769-70. The $1,500 figure the Secretary

adopted, while consistent with OBRA's cost-cutting purpose,

insofar as it placed a cap on the exemption, was not

exceptionally restrictive at the time it was adopted; the

Secretary calculated that it would exempt as many as 96

percent of then-current AFDC recipients. This effect would

appear less draconian than the effect of Congress's halving

the overall resource limit, from $2,000 to $1,000.

After the regulation was promulgated, Congress

itself twice considered and twice rejected any increase in

8. The Senate report explained the reduction in resource
limit and the grant of authority to the Secretary to
prescribe a limit on the automobile exemption:

The committee believes that the present regulatory
limit allows AFDC to be provided in situations in
which families have resources upon which they could
reasonably be expected to draw. . . . The
committee agreed to limit the value of resources to
assure that aid would be restricted to those most
in need.

S. Rep. No. 139, 97th Cong., 1st Sess. 503 (1981), reprinted

in 1981 U.S.C.C.A.N. 396, 769-70. See Dickenson v. Petit,

692 F.2d 177, 179, 181 (1st Cir. 1982) (noting that OBRA was
enacted "to reduce the size of the AFDC grant" and to
"disburs[e] benefits only to the most destitute").

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the Secretary's $1,500 automobile resource limit.9 While

nonaction by Congress is ordinarily a dubious guide, see

Brown v. Gardner, U.S. , 115 S. Ct. 552, 557, 63

U.S.L.W. 4035 (1994), it may become significant where

proposals for legislative change have been repeatedly

rejected, see Bob Jones Univ. v. United States, 461 U.S. 574,

599-601, 103 S. Ct. 2017, 76 L. Ed. 2d 157 (1983). The

failed legislative attempts since 1982 to increase the

automobile exemption plainly suggest that the regulation as

written was not inconsistent with congressional intent. See

United States v. Rutherford, 442 U.S. 544, 554 n.10, 99 S.

Ct. 2470, 61 L. Ed. 2d 68 (1979) ("[O]nce an agency's

statutory construction has been fully brought to the

attention of the public and the Congress, and the latter has

not sought to alter that interpretation although it has

amended the statute in other respects, then presumably the

legislative intent has been correctly discerned.")

(quotations omitted).

Plaintiffs read too much from the broader purposes

of AFDC, and not enough from the specific purpose of OBRA,

9. In 1987, the House of Representatives considered
inserting a provision in the OBRA of 1987 allowing states to
experiment with a $4,500 automobile equity exemption. H.R.
3545, 100th Cong., 1st Sess., 9111(c), 133 Cong. Rec.
29,966, 30,069 (1987). The final version of the statute did
not contain the provision. Pub. L. No. 100-2-3, 101 Stat.
1330 (1987). In 1988, the House again considered adding such
a provision to the Family Support Act, as described supra.

This proposal was similarly defeated.

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which was the legislation that actually authorized the

Secretary to set the regulation. See Brewer v. Madigan, 945

F.2d 449, 457 (1st Cir. 1991) ("The enabling statute . . . is

the principal source of relevant factors to be considered by

the agency in promulgating regulations.") (citations

omitted). Even if, as plaintiffs argue, the existence of the

automobile resource exemption implies that Congress intended

AFDC recipients to be able to retain some kind of

vehicle,10 Congress explicitly delegated the authority to

the Secretary to determine exactly how much of a person's

equity in the vehicle to exempt. See Frederick, 862 F. Supp.

at 43-44; Gorrie v. Bowen, 809 F.2d 508, 516 n.12 (8th Cir.

1987) ("appeals to the 'fundamental purpose' of the AFDC

program . . . are unhelpful" where Congress has initiated a

change in policy (citations omitted)); see also Rodriguez v.

United States, 480 U.S. 522, 526, 107 S. Ct. 1391, 94 L. Ed.

2d 533 (1987) ("[I]t frustrates rather than effectuates

legislative intent simplistically to assume that whatever

furthers the statute's primary objective must be the law.")

In setting the limit to include what he believed to be the

"vast majority" of AFDC recipients at that time, the

Secretary acted consistently with OBRA and not inconsistently

10. We express no opinion on this issue. See infra Part

III.B.1.

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with the broader purposes of AFDC. Accord Champion, 33 F.3d

at 967; Falin, 776 F. Supp. at 1101.

2. Food Stamp Survey Provided Rational Basis

We find little merit in plaintiffs' assertion that

the food stamp study did not provide a rational basis for the

Secretary's establishment of the $1,500 automobile equity

limit. Plaintiffs argue that the food stamp and AFDC

programs are two distinct programs with different eligibility

requirements. They further insist that there is no support

in the administrative record for the Secretary's assumption

that there is "extensive overlap" in the two populations or

that the food stamp population is, on average, more affluent

than the AFDC population. Plaintiffs say that food stamp

recipients were already subject to an automobile-asset

limitation at the time of the study, while AFDC recipients at

that time were not subject to such a limitation. Thus, the

fact that 96 percent of food stamp recipients owning an

automobile had equity of less than $1,500 may simply have

been a function of the food stamp program's preexisting

equity limits.

Micro-arguments of this sort, however, ignore the

breadth of the Secretary's discretion. The Secretary was not

required to base her regulations only on perfect information.

Rather, the Secretary's policy choice needed only to be

"rational." See State Farm, 463 U.S. at 43; Frederick, 862

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F. Supp. at 42 (stating that the issue is not "whether the

Secretary used the best available source to develop a

regulation, but whether the Secretary's conduct was

reasonable").

The Secretary here acted reasonably in relying on

the food stamp study. Accord Champion, 33 F.3d at 966;

Falin, 776 F. Supp. at 1101. It is undisputed that the food

stamp study provided the best data available at the time.

The study was based on a 1979 survey which collected asset-

ownership data from a statistically valid sample of 11,300

households of all income levels nationwide. Paul Bordes, who

provided technical support to the Secretary while the

regulation was being promulgated, noted in his deposition

that equity data on aid recipients were extremely hard to

come by. None of the comments at that time suggested any

other sources of data.11 There was evidence, moreover, of

overlap in the food stamp and AFDC populations. Bordes noted

that in 1981, approximately 80 percent of AFDC recipients

11. Plaintiffs now suggest that the same raw 1979 census
data that provided the basis for the study could have been
used to perform a separate study on assets among AFDC
recipients. Yet, at the time the regulations were
promulgated, such a study had not been performed and,
according to the Secretary, would have consumed a tremendous
amount of scarce resources to perform. The Secretary was not
required to use the most accurate data theoretically
possible. It was not unreasonable for the Secretary to rely
on the already-available study as an approximate measure of
asset ownership among AFDC recipients, rather than commit
agency resources to the performance of an additional, time-
consuming study.

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also received food stamps. And the assumption that AFDC

recipients were on the whole more affluent than food stamp

recipients was a judgment within the expertise of the agency

to make. That assumption was undisputed at the time. We,

therefore, believe the Secretary acted rationally in relying

on the food stamp study as a rough approximation of

automobile equity ownership among AFDC recipients.

Plaintiffs also point to alleged statistical flaws

in the study itself. Plaintiffs argue that the 96 percent

figure (for food stamp recipients who owned automobiles and

had equity in those automobiles under $1,500) was based on a

computational error, since it erroneously included the

percentage of the recipients who did not own cars at all.

Plaintiffs suggest (and the Secretary now concedes) that a

more accurate figure would be 90 percent. Plaintiffs also

argue that the figure assumes that, within the 17 percent of

recipients for whom there were no automobile-equity data

available, the distribution of automobile equity ownership

was identical to that within the population for which data

were available i.e. that there was no systematic bias in

the reporting of vehicle equity. Plaintiffs argue that this

assumption is unwarranted, since it is reasonable to suppose

that those owning higher valued automobiles would be more

likely to fail to provide information on automobile equity,

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for fear of disqualifying themselves from the program.12

Plaintiffs argue that these statistical flaws rendered the

Secretary's reliance on the study unreasonable.

We agree with the Eighth Circuit in Champion and

the Fourth Circuit in Falin that, even assuming that the more

accurate figure is 90 percent, the study still provided a

rational basis for the Secretary's finding that the $1,500

limit was "within the range of the vast majority of current

recipients," since 90 percent is still a "vast majority." 47

Fed. Reg. at 5657; see Champion, 33 F.3d at 967 n.5; Falin,

776 F Supp. at 1100, aff'd per curiam, 6 F.3d 207. Although

plaintiffs suggest that systematic bias in underreporting was

possible, they have presented no evidence that it actually

occurred. Where there was no evidence of bias, it was not

unreasonable for the Secretary to assume for the purposes of

calculation that no such bias existed. Thus neither of these

alleged statistical weaknesses rendered the study an

insufficient basis for the Secretary's regulation.

3. Secretary Responded Adequately to Comments

Plaintiffs also argue that the Secretary failed

adequately to respond to comments and criticisms when

promulgating the regulation. Plaintiffs contend that, during

the rulemaking process, the Secretary received numerous

12. In support, plaintiffs submitted a report by Peter S.
Fisher, an economist. The report was titled: An Economic

Analysis of the AFDC $1,500 Motor Vehicle Equity Limit.

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comments critical of the $1,500 limit. Some of these

comments criticized the relevance and validity of the food

stamp study. In response, the Secretary wrote:

We stand by our original position. The
choice of $1,500 as the maximum equity
value for an automobile was based on the
data from a Spring 1979 survey of food
stamp recipients. We regard the limit of
$1,500 equity value in an automobile as
reasonable and supportable.

47 Fed. Reg. at 5657. Plaintiffs argue that this was not a

meaningful response to the comments, and that the regulation

therefore violated the notice and comment provisions of the

Administrative Procedure Act, 5 U.S.C. 553(c) (1988)13.

We do not agree. Only a dozen comments were

submitted on the automobile resource exemption, of which ten

took issue with the $1,500 amount. Each of these comments

was fairly brief, criticizing the figure as generally too

low. Only one of them suggested an alternative to the $1,500

figure. None of them suggested any alternative data upon

which to base the figure. Given the nature of the comments,

13. 5 U.S.C. 553(c) (1988) reads, in relevant part:

After notice required by this section,
the agency shall give interested persons
an opportunity to participate in the rule
making through submission of written
data, views, or arguments with or without
opportunity for oral presentation. After
consideration of the relevant matter
presented, the agency shall incorporate
in the rules adopted a concise general
statement of their basis and purpose.

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we do not find the Secretary's brief response so inadequate

as to violate 553(c). Accord Champion, 33 F.3d at 966 n.4;

cf. Brewer, 945 F.2d at 457 n.7.

We conclude, therefore, that the $1,500 automobile

exemption was neither arbitrary nor capricious when

promulgated.

B. Regulation Valid Today

Plaintiffs insist that, even if the regulation was

valid when promulgated, it must be arbitrary and capricious

today given the Secretary's failure to increase the $1,500

cap for inflation. While a refusal to amend a rule, like the

promulgation of the rule in the first instance, may be

reviewable under the "arbitrary and capricious" standard,14

"[r]eview under the 'arbitrary and capricious' tag line . . .

encompasses a range of levels of deference to the agency, and

. . . an agency's refusal to institute rulemaking proceedings

is at the high end of the range." American Horse Protection

Ass'n v. Lyng, 812 F.2d 1, 4 (D.C. Cir. 1987) (citations

omitted). Thus, a refusal to institute rulemaking "is to be

14. In Heckler v. Chaney, 470 U.S. 821, 825, 105 S. Ct.

1649, 84 L. Ed. 2d 714 (1985), the Supreme Court held that an
agency's refusal to take ad hoc enforcement action is
presumptively unreviewable. However, it has been held that
the Heckler presumption does not apply to an agency's refusal

to institute rulemaking. American Horse Protection Ass'n v.

Lyng, 812 F.2d 1, 4-5 (D.C. Cir. 1987). See also Heckler,

470 U.S. at 825 n.2 (expressly noting that the Court was not
addressing review of an agency's refusal to institute
rulemaking).

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21

overturned 'only in the rarest and most compelling of

circumstances,' which have primarily involved 'plain errors

of law, suggesting that the agency has been blind to the

source of its delegated power.'" Id. at 5 (citations

omitted).15 Nothing of the sort appears here.

1. Not Inconsistent With Statute

Plaintiffs reiterate their position that, in light

of AFDC's general scheme, OBRA evinces an intent that AFDC

recipients be able to retain a safe and reliable vehicle.

Plaintiffs then argue that, even if the regulation were

consistent with this purpose when promulgated, the

Secretary's failure to adjust the $1,500 figure for inflation

necessarily makes it inconsistent with this broader purpose

today. The increase in the consumer price index since 1982

has effectively halved the value of $1,500. Accordingly,

that equity level is today consistent only with a car that is

eight to nine years old and has 80,000-120,000 miles on it.

15. See, 1 Kenneth C. Davis & Richard J. Pierce,

Administrative Law Treatise 6.9, at 280 (3d ed. 1994):

An agency can have any number of plausible reasons
for declining to [undertake rulemaking], and courts
are poorly positioned to evaluate the reasons most
frequently given by agencies. These include an
agency's decision that . . . the problem is not
sufficiently important to justify allocation of
significant scarce resources given the nature of
the many other problems the agency is attempting to
address. A court rarely has enough information to
second guess agency decisions premised on this type
of reasoning.

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22

Because such a car is not likely to be safe or reliable,

plaintiffs argue, the regulation today violates OBRA's

broader purpose.

As with their argument in the previous section,

plaintiffs read too much into the broad scheme of the AFDC

program and not enough into the cost-cutting purpose of OBRA,

the statute that actually authorized the Secretary to set the

figure. Nowhere does OBRA or the AFDC statute require the

Secretary to set the automobile exemption high enough so as

to enable all or most AFDC recipients to acquire and maintain

a "safe and reliable vehicle." As there was no stated

obligation of this sort in the first instance, there can be

no obligation to implement such a standard now.

The Secretary reasonably defends her continuing

adherence to the $1,500 figure without adjustment for

inflation on the ground that this is consistent with both the

text and purpose of OBRA. There is no language in OBRA

obligating the Secretary periodically to adjust the

automobile resource exemption for inflation, nor, as earlier

discussed, does OBRA tell the Secretary to set the cap at a

figure that will furnish a certain quality or level of

transportation. Instead, by its terms, OBRA gives the

Secretary unqualified discretion to prescribe the figure.16

16. The district court ignored the fact that Congress has
delegated policy-making in this area to the Secretary. It
thought the $1,500 figure to be inadequate for various policy

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23

Had Congress wanted to require the Secretary to make periodic

adjustments for inflation, it could easily have said so in

the statute, and indeed has done so in other instances. See,

e.g., 42 U.S.C. 415(i) (social security benefits) (1988);

29 U.S.C. 720(c) (1988) (vocational rehabilitation grants);

5 U.S.C. 8340 (1988) (annuities for retired federal

employees); Omnibus Budget Reconciliation Act of 1993, Pub.

L. No. 103-66, 107 Stat. 312, 675 (1993) (codified at 7

U.S.C. 2014(g)(2) (Supp. V 1993)) (automobile exemption

under food stamp program). Nor given the total absence of

any standards within the statute can an obligation to

adjust for inflation be inferred from a statutory guide to

the Secretary's discretion implying the necessity to maintain

the exemption at a certain level over time.17 Compare

reasons that it elucidated:

Used today, [the $1,500 automobile equity
exemption] can result in an AFDC recipient losing
his or her job by not allowing the recipient the
availability of a safe operative motor vehicle in
lieu of a schlock vehicle. The end result would be
for the government or other relief agencies making
up the difference in lost income. It destroys
initiative of those who are endeavoring to get off
the public dole and exacerbates the personal
degradation of many who are reluctantly on relief
only as a last resort.

However, the courts are not empowered by Congress to impose
their concepts of good policy on the Secretary.

17. A need to adjust for inflation might be implied, for
example, if the statute had explicitly stated that the
Secretary must set the automobile exemption at an amount high
enough at all times to ensure that AFDC recipients can retain

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24

Maine Ass'n of Interdependent Neighborhoods v. Petit, 659 F.

Supp. 1309, 1323 (D. Me. 1987). The Secretary, furthermore,

plausibly contends that her failure to adjust the cap is

consistent with OBRA's original purpose to move towards

tightening the AFDC eligibility requirements over time. S.

Rep. No. 139 at 503, reprinted in 1981 U.S.C.C.A.N. at 769-

70; Dickenson, 692 F.2d at 179.

As we have earlier pointed out, it is also highly

significant that Congress has twice since 1981 considered

revising the $1,500 figure and on both occasions has declined

to do so, suggesting its implicit acceptance of the

Secretary's failure to adjust the figure upwards. See

Rutherford, 442 U.S. at 554 n.10. Congress itself, moreover,

has never seen fit to adjust for inflation the related

overall resource limit of $1,000 which it set in 1981. See

Champion, 33 F.3d at 967. The fact that Congress itself has

not adjusted so closely-related a provision for inflation

suggests that the Secretary's similar refusal to adjust the

regulation is not plainly inconsistent with congressional

intent. See American Home Protection, 312 F.2d at 4.18

a "safe and reliable vehicle." As we have seen, however,
OBRA provides no such standard to inform the Secretary's
discretion on a continuing basis.

18. Plaintiffs take issue with the Secretary's failure to
adjust the figure after being asked by the conference
committee to review the regulation in the wake of passage of
the Family Support Act of 1988. They argue that the
Secretary's failure to adjust the figure was arbitrary and

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25

We recognize, as a possible argument, that

Congress's action in legislating an express automobile

exemption might be interpreted, by implication, to prevent

the Secretary from ever setting the amount so low as to

eliminate the exemption altogether, i.e. a zero cap or a cap

insufficient to allow most applicants to possess a

serviceable vehicle. Counter to this argument is evidence

strongly suggesting that the automobile exemption which

had for a long time existed as a creature of the Secretary's

earlier regulations was expressly incorporated in the

statute in 1981 in order to make clear the Secretary's

authority and duty to keep the exemption within bounds.

Immediately before OBRA, the automobile exemption had been

unlimited, the Secretary's earlier attempt at a $1,200 cap on

a vehicle's market value having been overturned by the D.C.

Circuit in 1976. National Welfare Rights Organ., 533 F.2d at

647. By expressly delegating to the Secretary unqualified

authority to prescribe the equity amount of the exemption,

Congress resurrected a cap and unequivocally put the ball in

the Secretary's court. Given OBRA's primary cost-cutting aim

capricious. However, the conference committee did not direct
the Secretary to revise the figure; it only asked the
Secretary to review the figure and "revise [it] if he

determined revision would be appropriate." 1988 U.S.S.C.A.N.

at 2976-77 (emphasis added). The Secretary reviewed the
regulation and determined that revision was not appropriate.
See 56 Fed. Reg. 17,358, 17,358 (1991). No more was

required.

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26

and Congress's evident desire to strengthen, not weaken,

the Secretary's control over the amount of the exemption a

zero cap or its functional equivalent, designed to avoid even

worse offsets in other areas of the program, might well be

within the Secretary's power to prescribe. But we need not

decide if this is so. Even were we to assume, for purposes

of argument, that the Secretary would lack the power to

reduce the exemption to zero or its functional equivalent,

the present case does not involve an amount so low. One

thousand five-hundred dollars may be consistent only with a

car that is eight to nine years old, with 80,000-120,000

miles on it as plaintiffs' expert opined but,

presumably, there are many such cars still on the road.

Nothing in the record indicates to the contrary, or that the

Secretary's continued use of a $1,500 equity figure is the

functional equivalent of eliminating altogether the

automobile exemption.19

We conclude that the Secretary's inaction in

respect to modifying the $1,500 figure for inflation is

supportable both under OBRA's express language and as a

reasonable construction of congressional intent. There is,

19. That the $1,500 reflects the owner's equity, and not
necessarily the total value of the car, raises a further
question, on which this record sheds little light, as to how
restrictive the exemption is, in practice, in disallowing
serviceable vehicles. Nor do we know how many persons
otherwise eligible for AFDC are currently eliminated by the
$1,500 cap.

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27

therefore, no "compelling" circumstance "suggesting that the

agency has been blind to the source of its delegated power"

such as to warrant our ordering a rulemaking. American Horse

Protection Ass'n, 812 F.2d at 4.

2. Not Inconsistent With Original Rationale

Plaintiffs argue that, even if not necessarily

contrary to OBRA's language and Congress's intent, the $1,500

figure today runs counter to the Secretary's original

rationale for adopting it. In 1982, the Secretary determined

on the basis of the then available data that $1,500 would

include the "vast majority" of AFDC recipients. Because of

the effects of inflation, that can no longer be assumed to be

true, plaintiffs point out. Accordingly, plaintiffs argue,

the regulation is today arbitrary and capricious, as the

figure is inconsistent with the agency's stated rationale.

(This was the argument that prevailed in Hazard v. Sullivan,

827 F. Supp. 1348 (M.D. Tenn. 1993), one of the two district

court cases that struck down the regulation).

The Secretary responds, reasonably we think, that

her predecessor's stated rationale for the 1982 regulation

need not be interpreted as an ongoing commitment to ensure

that the vast majority of AFDC recipients are able to retain

an automobile. Rather, the rationale can, and the Secretary

argues should, be interpreted as a desire to "grandfather"

those who were receiving AFDC at that time, i.e. to ensure

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28

that large numbers of existing recipients not be abruptly

terminated. In parsing the language in the federal register,

the Secretary places the emphasis on the word "current":

"the Federal maximum limit should be set within the range of

the vast majority of current recipients . . . ." 47 Fed.

Reg. at 5657-58 (emphasis added). Thus, even assuming that

over time the limit has excluded more and more individuals

from AFDC, that is not necessarily inconsistent with the

original stated rationale. Moreover, nothing in the statute

necessarily requires the Secretary to include the "vast

majority" of AFDC recipients in setting the limit. Indeed,

even though an earlier Secretary emphasized this factor in

1982, nothing obligates the present Secretary to follow the

same policy priorities. See Garnett, 905 F.2d at 782.20

20. Plaintiffs also argue that the failure to adjust the
automobile resource exemption for inflation is arbitrary and
capricious when compared to the Secretary's actions with
respect to similar provisions in other benefit programs.
Plaintiffs point to the vehicle asset limitation under the
Supplemental Security Income ("SSI") program. Plaintiffs
argue that in 1979, prior to the promulgation of the AFDC
automobile resource exemption, the Secretary proposed to
increase the pre-existing SSI automobile exemption to "allow
for inflation." 44 Fed. Reg. 43,265 (1979).

We agree with the Secretary that this does not make the
Secretary's refusal to adjust the AFDC automobile resource
exemption arbitrary and capricious. We note that, despite
initially expressing its intent to do so, the Secretary never
adjusted the SSI automobile exemption for inflation,
concluding instead that such an adjustment was unnecessary.
See 50 Fed. Reg. 42,683, 42,686 (1985). Thus, there is in

fact no inconsistency. Furthermore, plaintiffs cite no cases
holding that an agency must treat separate and distinct
benefit programs exactly the same. There may well be good

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29

3. One Final Note

Having concluded that the Secretary's inaction in

failing to adjust the $1,500 automobile resource exemption

for inflation was not violative of the enabling statute or

other law, we wish briefly to comment on a procedural matter

not raised by either party: namely, plaintiffs' bringing of

the inflation claim without first petitioning the Secretary

for an amendment to the $1,500 exemption. Under the

Administrative Procedure Act, "[e]ach agency shall give an

interested person the right to petition for issuance,

amendment, or repeal of a rule." 5 U.S.C. 553(e) (1988)

(emphasis added). Thus, prior to challenging an agency's

failure to revise a rule in light of changed circumstances, a

party can seek redress directly from the agency through a

petition for amendment under 553(e).

Where, as here, plaintiffs seek to raise a host of

factual and policy issues (such as the impact of inflation)

in a matter over which Congress has vested the Secretary with

primary discretion, it was patently appropriate and, in many

instances could be essential, for plaintiffs to have

petitioned the agency before seeking judicial redress. Cf.

Myers v. Bethlehem Shipbuilding, 303 U.S. 41, 50-51, 58 S.

Ct. 459, 82 L. Ed. 638 (1938) (It is "the long settled rule

reasons for adjusting some provisions for inflation and not
adjusting others. See Champion, 33 F.3d at 968.

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30

of judicial administration that no one is entitled to

judicial relief for a supposed or threatened injury until the

prescribed administrative remedy has been exhausted."). By

presenting the arguments for amendment directly to the

agency, plaintiffs would have placed before the agency their

evidence regarding the effects of inflation on the ability of

AFDC applicants to obtain transportation,21 and would have

enabled the agency to take whatever corrective action it

thought necessary. If the agency had granted the petition,

there would have been no need for judicial review. If, as is

more likely given the prior litigation on this issue, the

agency had denied the petition, then judicial review might

have been greatly facilitated by the existence of a more

developed agency record22 or, at least, of an agency

21. As it is now, the Secretary was, as far as we are able
to tell, first formally presented with the arguments for
amendment of the rule in the context of an adversary
proceeding.

22. 5 U.S.C. 555(e) (1988) provides:

Prompt notice shall be given of the
denial in whole or in part of a written
application, petition, or other request
of an interested person made in
connection with any agency proceeding.
Except in affirming a prior denial or
when the denial is self-explanatory, the
notice shall be accompanied by a brief
statement of the grounds for denial.

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31

decision clarifying its particular policy reasons for the

denial.23 Thus requiring a petition under these

circumstances serves the purposes of the exhaustion doctrine

(and the related doctrine of primary jurisdiction). See,

e.g., Midwater Trawlers Coop. v. Mosbacher, 727 F. Supp. 12,

15 (D.D.C. 1989) (dismissing claim for failure to exhaust

administrative remedies where plaintiff failed to petition

for rulemaking under 5 U.S.C. 553(e)); Hoffman-LaRoche v.

Harris, 484 F. Supp. 58, 60 (D.D.C. 1979) (same); cf.

Kappelmann v. Delta Air Lines, Inc., 539 F.2d 165, 169, 171

(D.C. Cir. 1976) (invoking doctrine of primary jurisdiction

where plaintiff failed to petition for rulemaking under 5

U.S.C. 553(e)); William V. Luneburg, Petitioning Federal

Agencies for Rulemaking, 1988 Wis. L. Rev. 1, 55 (1988).24

23. Plaintiffs criticize the Secretary's reliance, in her
brief, on arguments which plaintiffs call "post hoc
rationalization[s]" for not adjusting the $1,500 figure for
inflation. But plaintiffs can hardly complain of this where
they voluntarily by-passed the agency in order to come
straight to court. Despite plaintiffs' criticisms, moreover,
some indication of a specific, non-"post-hoc" policy
consideration can be gleaned from the 1992 letter from the
previous Secretary to Senator Dennis DeConcini, already
discussed supra. In that letter, the Secretary explained

that raising the figure to $3,000 would cost the federal
government $200 million and require corresponding offsets in
other programs. See Frederick, 862 F. Supp. at 40.

24. The exhaustion doctrine, as applied in this case, is
closely analogous to the doctrine of primary jurisdiction,
under which a court may refrain from exercising jurisdiction
over a controversy until an agency has had a chance to decide
an issue of fact or policy within that agency's jurisdiction
and special competence. See New England Legal Found. v.

Massachusetts Port Authority, 883 F.2d 157, 171-72 (1st Cir.

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32

Nevertheless, while petitioning the agency would

have been the better course, we have considered the merits of

the claim on appeal without having demanded strict adherence

to the doctrine of administrative exhaustion. The doctrines

of administrative exhaustion and primary jurisdiction are

judge-made rules to be applied on a case-by-case basis,

taking into account the purposes of the doctrines. See McGee

v. United States, 402 U.S. 479, 483, 91 S. Ct. 2457, 45 L.

Ed. 2d 47 (1971); Pihl v. Massachusetts Dep't of Educ., 9

F.3d 184, 190 (1st Cir. 1993); 2 Davis, supra, 15.2 at 307.

In this case, justice would not be served by remanding with

directions to dismiss for nonexhaustion, nor is a remand to

the agency for clarification of its reasons essential. The

claim turns primarily on issues of law concerning the scope

of the Secretary's powers; such issues of law we are equipped

to settle (and have settled) now. Moreover, the Secretary

has not objected to the lack of a petition, and such a

petition would likely be futile anyway as the Secretary

appears to have taken a firm stand, litigating this issue in

several fora. Thus, the exact same issue would likely arise

in the same posture after a petition was denied; resolving it

now would in fact conserve judicial resources. See, e.g.,

1989). Both doctrines serve to allocate decision-making
authority between agencies and the courts, and both doctrines
look to similar considerations of judicial economy, agency
expertise, etc. See 1 Davis, supra, 14.1 at 271.

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33

Weinberger v. Salfi, 422 U.S. 749, 765-66, 95 S. Ct. 2457, 29

L. Ed. 2d 47 (1979) (considering claim despite failure to

exhaust where petition would clearly be futile).

While we have, therefore, decided the merits

without requiring exhaustion, the exhaustion point should not

go unnoticed. Had the case turned, as might have occurred

under a different statute or in different circumstances, on

review of the agency's precise policy reasons for inaction,

only a record from within the agency could have yielded a

satisfactory basis for judicial review. A trial in the

district court would not be a viable alternative. See

Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 654,

110 S. Ct. 2668, 110 L. Ed. 2d 579 (1990); Citizens to

Preserve Overton Park v. Volpe, 401 U.S. 402, 420-21, 91 S.

Ct. 814, 28 L. Ed. 2d 136 (1971) (holding that if an agency

provides reasons insufficient to permit a court to review its

rationale, the proper remedy is to remand to the agency for

additional investigation or explanation); see also American

Horse Protection Ass'n, 812 F.2d at 7-8 (remanding to agency

after finding that agency had not provided sufficient reasons

for its denial of a petition for rulemaking); 1 Davis, supra,

8.5 at 394.

V.

In the end, plaintiffs cite no cases, other than

Hazard, that indicate that an agency must periodically

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34

consider inflation adjustments in setting its eligibility

standards for government benefits, absent a legislative

directive to do so.25 The few cases that address the issue

point the other way. See, e.g., Garnett, 905 F.2d at 782-83

(Secretary not required to adjust guidelines for disability

benefits to reflect changing market conditions, where

statutory grant of discretion to set guidelines broad).

Plaintiffs have, in any case, presented no evidence

indicating that the Secretary's failure to adjust the figure

for inflation is inconsistent with OBRA. Accord Champion, 33

F.3d at 968; Falin, 776 F. Supp. at 1101.

Reversed and remanded with directions to dismiss

the complaint. No costs.

25. Plaintiffs cite Maine Ass'n of Interdependent

Neighborhood v. Petit, 659 F. Supp. 1309, 1323 (D. Me. 1987)

("MAIN") for the proposition that it is unreasonable for an
agency to fail to consider the effects of inflation when
promulgating a rule. However, we agree with the Secretary
that MAIN is distinguishable. MAIN involved the agency's use

of data that was already eight years old at the time that it
was used to promulgate the rule. Moreover, the delegation of
rulemaking authority in that case was more circumscribed.

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