Strickland v. Commissioner, Maine Department of Human Services

                  UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT

                                             

No. 96-1435
                    NANCY STRICKLAND, ET AL.,

                     Plaintiffs, Appellants,

                                v.

        COMMISSIONER, MAINE DEPARTMENT OF HUMAN SERVICES,

                       Defendant, Appellee,

                                v.

            SECRETARY, U.S. DEPARTMENT OF AGRICULTURE,

                 Third-Party Defendant, Appellee.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

           [Hon. D. Brock Hornby, U.S. District Judge]
                                                               

                                             

                              Before

                      Selya, Circuit Judge,
                                                    

            Aldrich and Bownes, Senior Circuit Judges.
                                                               

                                             

     Rufus E.  Brown, with whom  Jack Comart,  Patrick Ende,  and
                                                                     
Pine Tree Legal Assistance, Inc. were on brief, for appellants.
                                          
     Jennifer  H.  Zacks,  Attorney,  Civil  Division,  Dept.  of
                                  
Justice, with  whom Frank W. Hunger,  Assistant Attorney General,
                                             
Mark  B. Stern, Attorney,  Civil Division, Dept.  of Justice, and
                        
Jay  McCloskey,  United  States  Attorney,  were  on  brief,  for
                        
Secretary of Agriculture.

                                             

                        September 24, 1996

                                             


          SELYA, Circuit  Judge.   Nearly four centuries  ago, an
                    SELYA, Circuit  Judge.
                                         

English playwright wrote of a young monarch exhorting his battle-

weary  comrades  to  stride  "once  more  unto  the breach,  dear

friends, once more."   William Shakespeare, King Henry the Fifth,
                                                                          

Act  III, Sc.  1, l.1  (1600).   Nancy and  Lyle Strickland,  the

appellants here, issue a similar call, again requesting that this

court invalidate a regulation  which the Secretary of Agriculture

(the Secretary)  promulgated under authority granted  by the Food

Stamp Act, 7 U.S.C.    2011-2025 (1988) (the Act).  In Strickland
                                                                           

v.  Commissioner,  Me. Dept.  of Human  Servs.,  48 F.3d  12 (1st
                                                        

Cir.), cert. denied,  116 S.  Ct. 145 (1995)  (Strickland I),  we
                                                                     

applied  the  teachings  of   Chevron,  U.S.A.  Inc.  v.  Natural
                                                                           

Resources Defense Council,  Inc., 467 U.S. 837 (1984), and upheld
                                          

a portion of  the regulation  that gave meaning  to an  ambiguous

phrase contained within the Act.  See Strickland I, 48 F.3d at 21
                                                            

(upholding 7 C.F.R.    273.11(a)(4)(ii)(D) (1994) as a reasonable

rendition of 7 U.S.C.   2014(d)(9)).  This second time around the

appellants seek to strike down  a different (but closely related)

section of the same regulation.  Because Chevron is still the law
                                                          

of  the  land,  we affirm  the  lower  court's  entry of  summary

judgment in the appellees' favor.

I.  THE STATUTORY SCHEME
          I.  THE STATUTORY SCHEME

          First  enacted  in  1964,   the  Act  is  designed  "to

safeguard the health and well-being of the Nation's population by

raising  levels of  nutrition  among low-income  households."   7

U.S.C.   2011; see generally Strickland I, 48 F.3d at 14-15.  The
                                                   

                                2


states  administer most  aspects of the  Food Stamp  Program (the

Program) while the federal government underwrites the cost (which

now amounts to  some $29  billion per year).   Recipients,  whose

eligibility  is determined  by  income and  family size,  receive

assistance in  the form of coupons  that may be used  to purchase

groceries  at local stores.   In order to  implement the Program,

Congress  has   authorized  the  Secretary  to  promulgate  "such

regulations . . . as [he]  deems necessary or appropriate for the

effective and efficient administration"  of the Program's federal

aspects.  See  7 U.S.C.   2013(a), (c).  Responsibility for other
                       

elements  of the Program devolves upon state agencies.  In Maine,

that  obligation reposes  with the  Department of  Human Services

(DHS).

          In  1971, Congress  instructed  the  Secretary  to  set

national eligibility  standards for  the Program.   The Secretary

did  so.    Of  particular  interest for  present  purposes,  the

Secretary barred any consideration  of principal payments made on

the purchase price of capital assets in computing the costs which

could be offset against the income of a self-employed  individual

to  determine whether  that person  met the  national eligibility

standard.   See 36 Fed. Reg.  14102, 14107 (July 29,  1971).  Six
                         

years later,  Congress overhauled  the Act.   It directed,  inter
                                                                           

alia,   that  for   purposes  of   determining  eligibility   for
              

participation  in  the  Program,  a person's  income  should  not

include the "cost of producing self-employment income."  7 U.S.C.

   2014(d)(9).  Though Congress  did not define  the term "cost,"

                                3


the  House   Committee  on  Agriculture  noted,   seemingly  with

approbation,  that existing  Program  regulations  did not  treat

principal  payments as  a "cost"  that could  be set  off against

income.  See H. Rep. No. 464, 95th Cong., 1st Sess. 25, reprinted
                                                                           

in 1977 U.S.C.C.A.N. 1978, 2001-02.
            

          Throughout, the Secretary has consistently hewed to the

position that principal payments on capital assets are not a cost

of  producing self-employment  income.    The current  regulation

epitomizes this  longstanding viewpoint;  it states  that "cost,"

when figured  for that purpose, shall not  include "[p]ayments on

the  principal of  the  purchase price  of income-producing  real

estate  and  capital  assets,  equipment,  machinery,  and  other

durable goods."  7 C.F.R.   273.11(a)(4)(ii)(A).

II.  THE COURSE OF LITIGATION
          II.  THE COURSE OF LITIGATION

          Mr. and Mrs. Strickland operate a construction business

in  Belgrade,  Maine (where  they reside).   When  their business

faltered, they  applied for  admission to the  Program and  began

receiving  benefits.    In  1993  the  DHS  determined  that  the

Stricklands'  average monthly  income  was more  than double  the

Program's eligibility limit.   Had they been  permitted to deduct

depreciation on business equipment as a "cost of  producing self-

employment income,"  they would  have remained eligible  for food

stamp assistance.   Consequently, they challenged  the regulation

that  excluded  depreciation,  7  C.F.R.     273.11(a)(4)(ii)(D),

arguing that it had been promulgated in derogation  of 7 U.S.C.  

2014(d)(9).  See Strickland I,  48 F.3d at 15-16.  In  due season
                                       

                                4


the  appellants  asserted claims  against  both the  DHS  and the

Secretary, and  the district  court certified the  Stricklands as

representatives of a class of "all Maine food stamp applicants or

recipients adversely affected  by the []  regulation on or  after

July 1, 1992."  Id. at 16.
                             

          The appellants enjoyed some initial success.  After the

parties  submitted  the case  on a  stipulated record,  the trial

court  invalidated the Secretary's  "no depreciation" regulation.

See Strickland v. Commissioner, Me. DHS, 849 F. Supp. 818 (D. Me.
                                                 

1994).  We reversed, finding ambiguity in the term "cost" as used

in  the  statutory  phrase  "cost  of  producing  self-employment

income."   See  Strickland I,  48  F.3d at  19.   Stressing  that
                                      

ambiguity made deference  appropriate, we upheld  the Secretary's

right  to  exclude  depreciation  from "cost"  as  a  permissible

rendition  of the statute.   See id. at  21.  In what  may now be
                                              

viewed as an overabundance of caution, we noted that the parties'

arguments in Strickland I  did "not require us to  decide whether
                                   

self-employed  food   stamp   recipients  must   be  given   some

alternative deduction, such as a deduction for replacement costs,

in recognition of either  the cost of acquiring capital  goods or

their consumption in  the course of producing income."  Id. at 21
                                                                     

n.6.1

          Apparently  convinced that  a  judicial  footnote is  a
                    
                              

     1That issue  was neither  briefed nor  argued in  this court
during  the  pendency  of  Strickland  I.    In  any  event,  the
                                                  
appellants  had told the district court that they did not dispute
the  Secretary's  authority  to  disallow  principal  payments on
equipment loans as a cost of producing self-employment income. 

                                5


terrible thing  to waste,  the Stricklands  promptly reformulated

their   suit  to   challenge   that  portion   of   7  C.F.R.    

273.11(a)(4)(ii)  in  which  the  Secretary purposed  to  exclude

payments on  the  principal  of the  purchase  price  of  capital

assets, averring that a favorable  finding would entitle them  to

continued eligibility for food stamp assistance.

          This  about-face proved  unproductive.    The  district

court  granted summary judgment in favor of the state and federal

defendants,  holding  that  the  Secretary  permissibly  excluded

principal  payments in  determining the  cost of  producing self-

employment income.  See Strickland  v. Commissioner, Me. DHS, 921
                                                                      

F.  Supp. 21, 24 (D.  Me. 1996) (Strickland  II) (concluding that
                                                         

"if the Secretary is not required to recognize even depreciation,

he  certainly  cannot be  required  to  recognize cash  principal
                                            

payments").  This appeal followed.

III.  STANDARD OF REVIEW
          III.  STANDARD OF REVIEW

          Because the interpretation  of a statute or  regulation

presents  a   purely   legal  question,   courts   subject   that

interpretation  to de novo review.  See United States v. Gifford,
                                                                          

17  F.3d  462, 472  (1st  Cir. 1994);  Liberty  Mut. Ins.  Co. v.
                                                                        

Commercial Union Ins.  Co., 978  F.2d 750, 757  (1st Cir.  1992).
                                    

This standard of  review is between appellate tribunals and lower

courts.   It  does not  diminish the  deference that  courts must

accord  to  authoritative  interpretations  of  opaque  statutory

provisions  undertaken by  those whom  Congress has  empowered to

administer  or enforce  particular laws.    As we  have regularly

                                6


held, such  deference is due the Secretary's  interpretation of a

less-than-pellucid food stamp statute.   See, e.g., Strickland I,
                                                                          

48 F.3d at  16; Massachusetts  v. Secretary of  Agric., 984  F.2d
                                                                

514, 520-21 (1st Cir.),  cert. denied, 114 S. Ct.  81 (1993); see
                                                                           

also  7  U.S.C.     2013(a),  (c)  (empowering the  Secretary  to
              

administer the Act).

IV.  ANALYSIS
          IV.  ANALYSIS

          When  courts review  an  agency's  interpretation of  a

statute  that it administers, Chevron directs them to engage in a
                                               

bifurcated  inquiry.  See Passamaquoddy Tribe v. State of Me., 75
                                                                       

F.3d 784, 794  (1st Cir. 1996); Strickland I, 48 F.3d  at 16.  In
                                                      

an oft-quoted passage, the Chevron Court delineated the nature of
                                            

the inquiry:

          First,  always,  is   the  question   whether
          Congress has directly  spoken to the  precise
          question at issue.  If the intent of Congress
          is clear, that is the  end of the matter; for
          the court,  as well as the  agency, must give
          effect to the unambiguously  expressed intent
          of   Congress.     If,  however,   the  court
          determines   Congress    has   not   directly
          addressed the precise  question at issue, the
          court   does  not   simply  impose   its  own
          construction  on the  statute,  as  would  be
          necessary in the absence of an administrative
          interpretation.   Rather,  if the  statute is
          silent  or  ambiguous  with  respect  to  the
          specific issue, the question for the court is
          whether the  agency's  answer is  based on  a
          permissible construction of the statute.

Chevron, 467 U.S. at  842-43 (footnotes omitted).  These  are the
                 

same questions that this  court posed in Strickland I, 48 F.3d at
                                                               

16, and we retrace our steps to the extent appropriate.

                                A
                                          A

                                7


          We  first look  to see  if Congress  has spoken  to the

precise question  at issue by  mandating either the  inclusion or

the exclusion  of principal payments  on capital assets  from the

computation of  the  "cost of  producing self-employment  income"

under 7 U.S.C.    2014(d)(9).2  Since this branch  of the inquiry

deals exclusively  with statutory construction  and congressional

intent, no deference is due the Secretary's views.

          In  Strickland  I we  determined  that  the statute,  7
                                     

U.S.C.   2014(d)(9), did not  require depreciation to be included

as  a "cost  of producing self-employment  income."   In reaching

this conclusion, we focused on the ambiguity inherent in the word

"cost"   a word that Congress  chose not to define.  We concluded

that  "the word  `cost'  is a  chameleon,  capable of  taking  on

different  meanings,  and shades  of  meaning,  depending on  the

subject matter  and the circumstances of  each particular usage."

                    
                              

     2In their complaint, the appellants asked the district court
to strike down  the Secretary's  policy, embodied in  7 C.F.R.   
273.11(a)(4)(ii)(A),  of disallowing  principal payments  made to
purchase capital assets (which  they term "capital costs").   The
district court  confined its ruling accordingly.   See Strickland
                                                                           
II, 921  F. Supp. at 24-25.  At oral argument before us, however,
            
the appellants'  counsel suggested that the  pivotal issue should
be  cast  in broader  terms; he  posed  the ultimate  question of
whether  the  Secretary's  general   regulatory  scheme,  in  not
allowing any  offset for wear and tear on capital assets by means
of   depreciation,   principal   payments,   or   otherwise,   is
permissible.  For purposes  of Chevron's first step, it  makes no
                                                
difference whether we  accept or reject  this formulation of  the
issue.  Because the statute (and, particularly, the  word "cost")
is ambiguous,  see text  infra, either formulation  of the  issue
                                        
leads ineluctably to the second step of the Chevron inquiry.
                                                             

                                8


Strickland I, 48  F.3d at 19.3  We  therefore found that Congress
                      

had not spoken directly  to the matter at issue.  See  id. at 19-
                                                                    

20.

          Although Strickland I did  not address exactly the same
                                         

question that  confronts  us today,  we agree  with the  district

court that its analysis  controls.  The appellants would  have us

believe  that  by  some thaumaturgical  sleight-of-hand  the word

"cost" has acquired a  plain meaning in the brief  interval since

we decided  Strickland I.  They seek  to persuade us that, though
                                  

"cost"  was  not   clear  enough  to   force  the  inclusion   of

depreciation,  the word nonetheless  possesses sufficient clarity

to force  the inclusion of  either principal payments  on capital

assets,  or, at least, some  offset for the  expense of acquiring

and  using up  such  assets.4   We  are unconvinced.    Statutory

ambiguity does not flash on and  off like a bank of strobe lights

                    
                              

     3Though noting  the open question as  to whether legislative
history  could  be considered  at the  first  stage of  a Chevron
                                                                           
inquiry, see Strickland I, 48 F.3d at 16-18, we examined the slim
                                   
legislative history underpinning 7 U.S.C.   2014(d)(9) and deemed
it  insufficient to "suck the elasticity from the word `cost' and
convey an  `unambiguously expressed intent of  Congress,'" id. at
                                                                        
19-20 (quoting  Chevron, 467  U.S. at  842-43).   That conclusion
                                 
remains unscathed.

     4In  this  connection, we  are  puzzled  by the  appellants'
reliance on Estey  v. Commissioner,  Me. DHS, 21  F.3d 1198  (1st
                                                      
Cir. 1994).  We ruled there that the term "energy assistance" had
a generally understood meaning and  then proceeded to apply  that
meaning to a  particular set of  facts.  See  id. at 1201,  1207.
                                                           
The appellants'  suggestion that the  term "cost" has  an equally
familiar meaning   a meaning  that includes principal payments on
capital  assets as a component of "cost"    flies in the teeth of
our unequivocal holding that "cost," as that term is used  in the
Act,  does not have any readily apparent meaning.  See Strickland
                                                                           
I, 48 F.3d at 19.
           

                                9


at a discotheque, shining brightly at the time of one lawsuit and

then vanishing mysteriously in the interlude before the next suit

appears.

          We need not  dawdle.   There is nothing  in the  record

before  us to indicate  that Congress  ever had  an unambiguously

expressed intent to include  principal payments on capital assets

as a cost of producing  self-employment income.  The text  of the

statute  does not encourage such  a construction and  there is no

legislative history  (beyond that  already considered  and deemed

insufficient  in Strickland  I, 48 F.3d  at 19-20)  that supports
                                        

including principal payments  or any proxy therefor  as a "cost."

To the precise contrary, all the extrinsic evidence suggests that

Congress  concurred in  the Secretary's longstanding  decision to

disregard  such payments.   The most persuasive  datum comes from

the  archives of the Program.   The Secretary  had been excluding

principal  payments from  the cost  of producing  self-employment

income for several years by the time Congress enacted  7 U.S.C.  

2014(d)(9).   That  being so,  the presumption  is that  Congress

intended  the word  "cost"  to be  given  the same  meaning  that

already  had been  established in  the regulatory  context.   See
                                                                           

Commissioner v. Keystone Consol. Indus., Inc., 508 U.S.  152, 159
                                                       

(1993); Strickland I, 48 F.3d at 20.
                              

          Here,  moreover, it  cannot  plausibly  be argued  that

Congress  merely  overlooked   the  Secretary's   contemporaneous

treatment  of  principal payments,  for  the  House Committee  on

Agriculture explicitly  recognized the prevailing  practice.  See
                                                                           

                                10


H.  Rep.  No. 464,  supra, 1977  U.S.C.C.A.N.  at 2001-02.   This
                                   

combination       congressional   awareness   of    an   existing

administrative praxis coupled with a concomitant unwillingness to

revise  that  praxis     strongly  implies legislative  approval.

"[W]hen Congress revisits a statute giving rise to a longstanding

administrative  interpretation  without  pertinent   change,  the

`congressional  failure   to  revise   or  repeal  the   agency's

interpretation is persuasive evidence  that the interpretation is

the one intended by Congress.'"  CFTC v. Schor, 478 U.S. 833, 846
                                                        

(1986)  (quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-75
                                                     

(1974) (footnotes omitted)).5

          In sum,  because Congress has not  plainly resolved the

interpretive question that is  now before us, we must move to the

second step of the Chevron pavane.
                                    

                                B
                                          B

          During  the  second stage  of  a  Chevron analysis,  an
                                                             

inquiring  court  accords  substantial  respect  to authoritative

agency  interpretations.   See Strickland  I, 48  F.3d at  17-18.
                                                      
                    
                              

     5We  dismiss out  of  hand the  appellants' contention  that
Strickland I etched  in stone a particular  conception of "cost,"
                      
equating  the word with cash outlays.  This contention reflects a
misunderstanding of the thrust of our opinion.  The first step of
a Chevron  inquiry  requires a  court  to determine  whether  the
                   
language of a  statute is  susceptible to more  than one  natural
meaning.    Finding "cost"  to  be  inherently ambiguous  in  the
context of the Act, we held that plain meaning did not  foreclose
the Secretary's decision to exclude depreciation from the cost of
producing self-employment income.   See Strickland I, 48 F.3d  at
                                                              
19.   Our intention was to  explain why the courts  must defer to
any   permissible  interpretation  of   "cost"  adopted   by  the
             
Secretary,  not  to endorse  a  particular  conception of  "cost"
(whether it  be that of an  economist, a layman, or  a food stamp
recipient).

                                11


Thus,  an interpretive  regulation must be  honored unless  it is

"arbitrary, capricious,  or manifestly contrary to  the statute."

Chevron, 467 U.S.  at 844.  In deciding this  issue, a court must
                 

avoid inserting its own policy considerations into the mix.  "The

agency need  not write a rule that serves the statute in the best

or most  logical manner; it  need only  write a  rule that  flows

rationally  from a  permissible  construction  of  the  statute."

Strickland I,  48 F.3d at  17; accord  Cohen v. Brown  Univ., 991
                                                                      

F.2d 888,  899 (1st  Cir.  1993).   Though the  level of  respect

varies  with  the   circumstances,  deference   to  an   agency's

interpretation is "particularly appropriate in complex and highly

specialized areas  where the regulatory net  has been intricately

woven."  Massachusetts Dept.  of Educ. v. United States  Dept. of
                                                                           

Educ., 837 F.2d 536,  541 (1st Cir. 1988) (quoting  Citizens Sav.
                                                                           

Bank  v. Bell, 605 F. Supp. 1033, 1041 (D.R.I. 1985)).  Moreover,
                       

longstanding  agency  interpretations  generally receive  greater

deference than newly contrived ones.  See Visiting Nurse Ass'n of
                                                                           

No. Shore, Inc. v. Bullen,     F.3d    ,     (1st Cir. 1996) [No.
                                   

95-1849, slip op. at 24].

          Applying  these standards,  we readily conclude  that 7

C.F.R.    273.11(a)(4)(ii) is within  the pale.   The regulation,

which  reflects the  agency's consistent  interpretation for  the

past  quarter-century, emanates  from the  Secretary's reasonable

determination that the purpose  of the Act is to  help low-income

families  purchase food,  not  to underwrite  the acquisition  of

                                12


capital assets.6  To  be sure, rental payments on  capital assets

are, as the  appellants point  out, deductible as  a "cost,"  but

such  payments  easily   can  be  distinguished  from   principal

payments.   When one leases  a capital asset  (say, a tractor) no

ownership  interest  is  acquired,  and  the  lease  payments  go

entirely toward producing  self-employment income.   By contrast,

when one  buys a capital asset  and pays for  it in installments,

the payments  not only permit  the payer  to use the  asset as  a

means of producing self-employment income  but also permit him to

build  equity.  This additional feature changes the nature of the

transaction.   The  Secretary's regulation  reasonably  seeks  to

avoid subsidizing such "dual purpose" payments.

          Of  course, the appellants now  put a different spin on

the situation.   See supra note 2.  They suggest that, instead of
                                    

appraising  the validity  of 7  C.F.R.    273.11(a)(4)(ii)(A), we

should view the matter in broader terms and determine whether the

Secretary must allow some offset for expenses associated with the
                                   

acquisition  and depletion of capital  assets used in  a trade or

business.

          Passing  potential  procedural problems  and addressing

this  argument on the merits, it does not benefit the appellants.

                    
                              

     6Our  determination that  the Secretary  reasonably excluded
principal payments  on capital assets from the  cost of producing
self-employment  income  is bolstered  by  the  evidence, already
chronicled, that this interpretation of "cost" is very likely the
one that  Congress  intended.   See  supra pp.  10-11.   When  an
                                                    
agency's  interpretation  jibes  with  discernible  congressional
intent, a  court is  hard-pressed to declare  that interpretation
impermissible under Chevron's second step.
                                     

                                13


Their premise is that, by putting capital assets to one side, the

Secretary has defined "cost  of producing self-employment income"

so grudgingly as to frustrate Congress' intent.  But this premise

is  faulty.   The Secretary  has not ignored  the costs  of doing

business; rather,  he has recognized numerous  items as allowable

costs, e.g.,  labor, stock, inventory,  business-related interest

(including  interest  associated  with  installment  payments  on

capital  assets), and  taxes paid  on income-producing  property.

See  7  C.F.R.    273.11(a)(4)(i).    He  simply  has refused  to
             

recognize the kind of costs for which the appellants seek credit,

saying in  effect that  when a  self-employed person  is building

equity  (a  phenomenon  that  almost  invariably  accompanies the

purchase  of capital  assets), the  Secretary will  define "cost"

very restrictively (probably because no good way exists to give a

credit  for expenses  related to  the purchase of  capital assets

without also subsidizing some intangible ownership interest).  As

a result, food stamp  recipients who buy capital assets  are able

to claim  relatively few offsets  for the expense  connected with

acquiring and using those assets.

          We   frankly   acknowledge    that   the    Secretary's

interpretation is  a  harsh  one,  especially as  it  relates  to

persons in the appellants' position.  The regulatory edifice that

now exists may not be the  one which we, if building on an  empty

site, would choose to  construct.  But that is largely beside the

point.  The term "cost" is ambiguous, and a harsh interpretation,

as here, which  arises out of the Secretary's  reasonable refusal

                                14


to subsidize ownership, is not per se arbitrary or capricious.
                                               

V.  CONCLUSION
          V.  CONCLUSION

          We need go no further.   The  "cost of producing  self-

employment  income,"  7 U.S.C.     2014(d)(9),  is imprecise  and

Congress has neither specified that payments designed to amortize

the  purchase price of capital assets  must be deemed part of the

cost  nor   decreed  that  some  equivalent   write-off  must  be

recognized in calculating the cost.  Thus, the regulation here at

issue  represents  a  permissible construction  of  the  statute.

After  all, within the wide limits that Chevron sets, courts must
                                                         

respect the Secretary's policy choices.

Affirmed.
          Affirmed.
                  

                                15