Beno

Opinion by Judge GOODWIN; Dissent by Judge O’SCANNLAIN.

Plaintiffs, California residents who receive Aid to Families with Dependant Children (“AFDC”), appeal the denial of their request for a preliminary injunction enjoining California’s public benefits experiment, 853 F.Supp. 1195 . Plaintiffs object to a statewide benefits cut enacted as part of an experimental work-incentive project and challenge the Secretary of Health and Human Services’ (“Secretary of HHS”) 1 waiver of certain federal laws related to the project. They argue that the Secretary’s waiver violates the Administrative Procedures Act, (“APA”), 5 U.S.C. § 701 et seq. and § 211 of the HHS Appropriations Act, 42 U.S.C. § 3515b, which prohibits HHS from spending federal money on experimental projects which pose a danger to human research subjects without their informed consent. In addition, they contend that California’s project violates the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12213 , by failing to make reasonable accommodations for AFDC recipients with disabilities. We reverse.

I. CALIFORNIA’S PROGRAM

The benefits cut at issue in this appeal is part of a five-year Assistance Payments…

dissenting:

I respectfully dissent. For the reasons expressed in Judge Levi’s well-crafted memorandum of decision and order (unpublished), I would affirm. Given the extremely deferential standard under which we review the Secretary’s decisions under 42 U.S.C. § 1315 , I believe that the agency record provides more than sufficient support for the Secretary’s waiver.

As the court’s opinion rightly states, an agency’s decision is arbitrary and capricious, and may be reversed, only if:

Motor Vehicle Mfr. Ass’n v. State Farm Ins., 463 U.S. 29, 44 , 103 S.Ct. 2856, 2867 , 77 L.Ed.2d 443 (1983). The court misconstrues this rule. It fails to recognize that the rule severely narrows the scope of this court’s review. Recall the Supreme Court’s language: “entirely failed” and “so implausible.” These are words of extremes; they indicate that an agency decision should be reversed only in the rare case when it is utterly unsupported by the record.

This is not such a case. Rather, the instant proceeding is very similar to Aguayo v. Richardson, 473 F.2d 1090 (2d Cir.1973), the only other appellate case to review the Secretary’s waiver of federal requirements under Section 1315 and approval of…