CHARLES M. ATKINS, COMMISSIONER OF THE MASSACHUSETTS DEPARTMENT OF
PUBLIC WELFARE, PETITIONER V. GILL PARKER, ET AL. NO. 83-6381 GILL
PARKER, ET AL., PETITIONERS V. JOHN R. BLOCK, SECRETARY OF
AGRICULTURE, ET AL.

   No. 83-1660

   In the Supreme Court of the United States

   October Term, 1984

   On Writs of Certiorari to the United States Court of Appeals for
the First Circuit

   Reply Brief In No. 83-1660 and Brief in No. 83-6381 For the Federal
Respondent

            TABLE OF CONTENTS
   Summary of argument
   Argument
      I. The Massachusetts notice satisfied all
          applicable statutory, regulatory, and constitutional
          requirements
          A. This Court is not precluded from reaching the

          issues raised by the Commonwealth's cross-petition

          B. The Massachusetts notice conformed to all
              regulatory and statutory requirements
          C. The Massachusetts notice satisfied or
              exceeded constitutional requirements
      II. The district court's remedial order was beyond
          the court's statutory and equitable authority and
          in violation of sovereign immunity
          A. Neither the Food Stamp Act nor principles of
              equitable discretion justify the district court's
              order to provide food stamp benefits in
              amounts exceeding the level established by
              Congress
          B. The district court's award of retroactive
              benefits is precluded by the Eleventh Amendment
              and principles of sovereign immunity
          C. The district court was not justified in
              requiring the Commonwealth to undertake
              rulemaking under court supervision
   Conclusion

                          QUESTIONS PRESENTED

   1. Whether the Due Process Clause requires that individualized
advance notice be given to each affected food stamp recipient prior to
the implementation of statutory benefit level adjustments, when the
statutory change can be implemented without any new or additional
factual findings as to individual recipients.

   2. Whether, assuming that the Due Process Clause requires some type
of individualized advance notice, the notices issued by the
Massachusetts Department of Public Welfare in the instant case,
coupled with the other procedures for reducing the risk of error, were
constitutionally sufficient.

   3. Whether the notices in this case were adequate under the Food
Stamp Act and the pertinent federal regulations.

   4. Whether, assuming that the notices in this case were in
violation of the Constitution or applicable statutory or regulatory
provisions, the court of appeals correctly reversed the district
court's remedial order, which would have required the retroactive
payment of food stamp benefits to the plaintiff class in excess of the
level authorized by Congress and would have required the Commonwealth
to promulgate notice regulations under district court supervision.

                          SUMMARY OF ARGUMENT

   This case involves the implementation of a 1981 statutory reduction
in food stamp benefits.  Section 106 of the Omnibus Budget
Reconciliation Act of 1981 (OBRA), Pub. L. No. 97-35, 95 Stat. 360,
reduced the amount of earned income deducted (or "disregarded") in the
calculation of a household's food stamp benefits from 20% to 18%.
Plaintiff-respondents filed suit in federal court to challenge the
means by which the Commonwealth of Massachusetts implemented this
statutory change.  The district court held that the notice provided by
the Commonwealth was insufficient, and order the Commonwealth to
restore the benefit reduction retroactively to all members of the
plaintiff class.  The court of appeals, while agreeing with the
district court that the notices were insufficient, reversed the
remedial order.  Plaintiff-respondents petitioned for review of the
reversal of the remedial order (No. 83-6381) and the Commonwealth
cross-petitioned for review of the holding that its notices were
insufficient (No. 83-1660).  This Court granted both petitions.

   In our opening brief, we demonstrated that the notices sent by the
Commonwealth of Massachusetts did not violate the Due Process Clause.
Since the reduction in food stamp benefits was a result of a statutory
change rather than a factual determination by the state agency, it
need not have been preceded by due process protections of notice and a
hearing.  And even if some notice was constitutionally required, the
Commonwealth's notice explained, in terms "generally familiar" to food
stamp recipients (as the district court found (Pet. App. A96)), the
nature of the change in benefits and the availability of a fair
hearing in the event of error.  Additional procedures required by
statute and regulation guarantee further information to recipients and
reduce the risk of computational error.  Due process requires no more.
 Since the lower courts' rulings on plaintiff-respondents' claims of
statutory and regulatory deficiencies were wholly dependent on the
prior constitutional holding, and no independent inconsistencies
between the notices and the Food Stamp Act or the Department's
regulatory notice requirements had been identified in the litigation,
the notices were fully sufficient under law.

   Plaintiff-respondents' brief takes issue with our submission on the
sufficiency of the notice, and also introduces the remedial issue.  We
shall therefore first reply to plaintiff-respondents' arguments on the
sufficiency of notice, and then turn to the remedial question.

   I. Plaintiff-respondents first urge this Court not to address the
question of the sufficiency of notice, but to dismiss the
Commonwealth's cross-petition as improvidently granted.  Since this is
but a reiteration of the arguments they presented unsuccessfully in
opposition to the Commonwealth's petition, and is in any event of
little merit, this suggestion should be rejected.

   On the merits, plaintiff-respondents place primary emphasis on
independent statutory grounds for affirmance, not articulated by the
lower courts.  They contend that the second clause of 7 U.S.C.
2020(e)(10), which requires states to maintain prior levels of
benefits during the pendency of a fair hearing on an adverse action,
indicates that Congress intended the states to provide advance notices
to food stamp recipients, even in cases where benefits are reduced by
Act of Congress, containing information about how the statutory change
will affect each individual household.  However desirable such
recipient-specific notices may be as a matter of practice, however,
neither the statute nor the Department's regulations require them.

   The Department's regulations clearly distinguish between "adverse
actions," which are fact-specific reductions or terminations applying
to a particular food stamp recipient, and "mass changes," which are
changes in the law that apply on an across-the-board basis to all or a
large segment of the recipient population.  Adverse actions must be
accompanied by recipient-specific notices;  mass changes need only be
preceded by a general notice informing all affected recipients of the
nature of the change.  Section 2020(e)(10), far from invalidating this
regulatory scheme, incorporates it.  The section does not itself
require any notice whatsoever.  However, in addressing the effect of
notices on the right to continued benefits during fair hearings, the
section explicitly adopts the terminology of the Department's notice
regulations.  The legislative history shows that Congress was aware
of, and understood, the Department's distinction between adverse
actions and mass changes.  Thus, when Congress used the same
terminology in the second clause of Section 2020(e)(10), it was
evidently intending the same meaning to apply.

   Plaintiff-respondents also defend the lower courts' finding of a
due process violation.  However, they wholly fail to explain how the
advance notice and hearing procedures required when a welfare
recipient claims that he will receive fewer benefits than he is
entitled to under law (see Goldberg v. Kelly, 397 U.S. 254 (1970)) can
be stretched to require advance notice and a hearing before a change
in the law can be put into effect.  And even assuming some notice is
required, plaintiff-respondents substantially overestimate the risk of
error in the Commonwealth's procedures and the value of more elaborate
notices to food stamp recipients.  The result is to create a highly
disruptive constitutional rule with no perceptible limiting principle.

   II. On the remedial question, plaintiff-respondents contend, in the
alternative, that they were entitled under 7 U.S.C. 2023(b) to
retroactive benefits at the prior statutory level, or that the
district court's order granting them such benefits was within the
court's equitable discretion.  Neither theory has merit.

   Section 2023(b) itself is a limitation on the courts' power to
grant retroactive benefits -- even to recipients who were entitled to
them under law -- for a period exceeding one year before discovery of
the error.  The section is parallel to 7 U.S.C. 2020(e)(11), which
requires states to restore wrongfully denied benefits for a period of
up to one year.  Both provisions originated in a prior regulatory
requirement for restoration of lost benefits.  The language of the
prior provisions and the legislative history accompanying the
congressional amendments make clear that the only errors for which
restoration is available are substantive errors in food stamp
allotments.  There is no right to receive benefits at a level
exceeding the statutory level because of procedural errors that did
not result in an incorrect allotment.

   It follows that the district court's order was not within the
court's equitable discretion.  A court has no discretion to disregard
other law, or to set its own level of welfare benefits as a result of
procedural errors.  This Court has plainly rejected the notion that a
plaintiff is entitled to retroactive benefits for a due process
violation where he cannot show that there was a substantive error in
his case.  Carey v. Piphus, 435 U.S. 247 (1978);  Codd v. Velger, 429
U.S. 624 (1977).

   Moreover, it would be a violation of sovereign immunity to require
the Commonwealth or the federal government to pay retroactive benefits
at a level exceeding that established by law.  The court of appeals
was correct in reversing this order.

   The remaining aspects of the district court's order, requiring the
Commonwealth to develop new regulations under district court
supervision, were also correctly reversed by the court of appeals.
Such a remedy is a serious intrusion into the Commonwealth's
authority, delegated to it by Congress.  The district court made no
findings that would justify such an extreme remedy.  As the court of
appeals observed, both the good faith of the Commonwealth and the lack
of any indication that injunctive relief would be required to ensure
lawful conduct in the future make the district court's injunctive
order inappropriate.

                               ARGUMENT

 I. THE MASSACHUSETTS NOTICE SATISFIED ALL APPLICABLE STATUTORY,
REGULATORY, AND CONSTITUTIONAL REQUIREMENTS

 A. This Court Is Not Precluded From Reaching The Issues Raised By The
Commonwealth's Cross-Petition

   On June 18, 1984, this Court granted the Commonwealth's
cross-petition for a writ of certiorari in No. 83-1660, which raised
two questions:  the validity of the court of appeals' holding that the
Commonwealth's notice to food stamp recipients violated the
recipients' due process rights, and the correctness of the court of
appeals' standard of review of the findings of the district court.

   Plaintiff-respondents urge this Court (Br. 18-22) to dismiss the
cross-petition in No. 83-1660 as improvidently granted, on the basis
that the Commonwealth's notice was in violation of 7 U.S.C.
2020(e)(10) and that it is therefore unnecessary for this Court to
review the lower courts' determination that the notice was in
violation of the Due Process Clause.  This merely reiterates the
argument plaintiff-respondents unsuccessfully made in their brief in
opposition to the cross-petition (at 1-3, 5).  No intervening
circumstances or additional information have come to light that would
warrant a different disposition now.  See Ferguson v. Moore-McCormack
Lines, Inc., 352 U.S. 521, 559 (1957) (Harlan, J., concurring and
dissenting) (dismissal as improvidently granted not warranted "in the
absence of considerations appearing which were not manifest or fully
apprehended at the time certiorari was granted");  see also Burrell v.
McCray, 426 U.S. 471, 474-475 (1976) (Brennan, J., dissenting);  The
Monrosa v. Carbon Black Export, Inc., 359 U.S. 180, 183 (1959).

   In any event, plaintiff-respondents' position is without merit.
Although the Commonwealth did not explicitly address the statutory
holding of the courts below in its questions presented, that question
is fairly subsumed.  See Sup. Ct. R. 21.1(a).  As noted in our opening
brief (at 18 n.18), the court of appeals expressly predicated its
statutory holding on its prior conclusion that the Commonwealth's
notice violated the Due Process Clause.  The court stated the basis
for its statutory holding as follows (Pet. App. A31-A32) (emphasis
added)):  "We doubt that Congress intended a constitutionally
deficient notice to satisfy the statutory notice requirement and thus
we affirm the district court's conclusion that the December notice
failed to satisfy the notice requirements of 7 U.S.C. 2020(e)(10) and
7 C.F.R. Section 273.12(e)(2) (ii)." /1/ This makes clear that the
court's statutory holding follows from, and is dependent on, its prior
constitutional holding.  The court of appeals was surely aware of the
fundamental principle that the courts should not adjudicate
constitutional issues where there are alternative bases for decision.
That the court found it necessary to address the constitutional
question at great length corroborates this interpretation of the
opinion.

   Although we agree that plaintiff-respondents may raise independent
statutory grounds for affirmance of the court's holding on the
liability issue, such grounds cannot, under the circumstances,
preclude the Commonwealth and the federal respondent from addressing
the issue properly raised in the cross-petition, or from contesting
plaintiff-respondents' independent statutory position.  /2/

   Finally, it would be difficult for this Court adequately to address
plaintiff-respondents' own remedial question in the absence of a
holding on the constitutional question.  Plaintiff-respondents contend
that they are entitled, as a remedy for the alleged deficiencies in
the Commonwealth's notice, to receive food stamp benefits in excess of
those established by statute.  Whether such a remedy would be
appropriate in the event of a constitutional violation (and we think
it would not), it seems clear that the payment of such benefits would
be wholly inappropriate as a remedy for violations of a mere
regulation ot a previously-enacted statute.  Cf. United States v.
Caceres, 440 U.S. 741 (1979).  The lower courts' remedial holdings
were predicated expressly and exclusively on the finding of a
constitutional violation (see Pet. App. A32, A38 (court of appeals);
id. at A99-A104 (district court)).  For this Court to address the
remedial question raised in No. 83-6381 solely on the assumption of a
statutory violation would place the remedial issue in an entirely
different legal context from that in which it was decided below.

 B. The Massachusetts Notice Conformed To All Regulatory And Statutory
Requirements

   While contending that the notice sent to Massachusetts food stamp
recipients in December 1983 violated the notice provisions of the Food
Stamp Act, 7 U.S.C. 2020 (e)(10) (Br. 22-30), plaintiff-respondents
virtually ignore the regulations that govern the issuance of notices.
These regulations make clear that the Commonwealth was not obligated
to provide advance notice of how the statutory change in the earned
income disregard would affect each recipient household, but was
obligated solely to inform them of the nature of the change in general
terms.

   The Department's regulations implementing the statutory change in
the earned income disregard instructed the states to provide notice to
affected recipients in the manner prescribed for mass changes.  46
Fed. Reg. 44722 (Sept. 4, 1981).  Those regulations, in turn, provide
(7 C.F.R. 273.12(e)(2)(ii)):

         A notice of adverse action is not required when a household's
      food stamp benefits are reduced or terminated as a result of a
      mass change in the public assistance grant.  However, State
      agencies shall send individual notices to households to inform
      them of the change.

   Notices of adverse action, described at page 4 of our opening
brief, must contain specific information on the action to be taken
with respect to each recipient household.  /3/ Such notices, however,
are required only in the event of an "adverse action" -- i.e., a
termination or reduction initiated by the state agency on the basis of
the facts in a particular case (see 7 C.F.R. 273.13(a)(2) (1983)) -- a
category of actions that expressly excludes "mass changes." 7 C.F.R.
273.13(b)(1).  Mass changes, as the regulation quoted above indicates,
need not provide recipient-specific information;  the only requirement
is that the states "shall send individual notices to households to
inform them of the change." /4/ As the court of appeals held, the
change in the earned income disregard, at issue here, was subject to
the "mass change" requirements, not the "adverse action" requirements
(Pet. App. A28-A29).

   Plaintiff-respondents disregard the distinction made in the
regulations, and acknowledged by the court of appeals, between mass
changes and adverse actions.  They contend that the Food Stamp Act
itself, in Section 2020 (e)(10), imposes a requirement of advance
notice, with recipient-specific information for all cases in which
benefits are reduced or terminated for whatever reason.  The necessary
implication of their position is that the Department's regulations --
which predate the 1977 Act and have never been questioned by Congress
-- are inconsistent with the Act.  /5/ We do not agree.

   Certainly, nothing in the language of the Food Stamp Act conflicts
with the Department's regulations or imposes any notice requirements
in excess of the regulatory requirements.  The only statutory
reference to notice is contained in the second clause of Section
2020(e)(10).  This provision does not directly impose any notice
requirements whatever;  the statute merely presupposes the existence
of notice (7 U.S.C. 2020 (e)(10) (emphasis added)):

      (A)ny household which timely requests such a fair hearing after
      receiving individual notice of agency action reducing or
      terminating its benefits within the household's certification
      period shall continue to participate and receive benefits on the
      basis authorized immediately prior to the notice of adverse
      action until such time as the fair hearing is completed * * *.

   By its terms, Section 2020(e)(10) thus relates to the consequence
of notice;  the requirement of notice is imposed by preexisting
regulation.  The meaning of the statutory references to "individual
notice of agency action" and "notice of adverse action" is therefore
to be found in the regulatory notice requirements as they existed in
1977, when this portion of the statute was enacted (Pub. L . No.
95-113, Section 1301, 91 Stat. 972), and is illumined by the history
of those regulatory provisions.

   When a notice requirement was first imposed by the Department in
1971, no distinction was made between adverse actions and mass
changes.  See 7 C.F.R. 271.1 (n) (1972).  The same type of notice was
required for each.  In 1974, however, the Secretary amended the
regulations to provide that "(i)ndividual notices of adverse action
are not required when:  (i) Mass changes in benefits are required for
certain classes of recipients because of changes required by Federal
or State law or Federal Regulation affecting the basis of issuance
tables, income standards, or other eligibility criteria * * *" (7
C.F.R. 271.1(n)(2) (1975)).  In the case of such mass changes, the
states were required to "publicize the possibility of a change in
benefits through the various news media or through a general notice
mailed out with (food stamp allotment) cards and with notices placed
in food stamp and welfare offices" (id. Section 271.1(n)(3)).  The
explanation in the Federal Register stated that the change would
"relieve State agencies of the obligation to identify and notify each
household whose benefits are affected by the mass change and, at the
same time, will provide households in a reasonable manner with an
indication that some change in their program status should be
expected." 39 Fed. Reg. 25996 (July 15, 1974).

   This was the form of the notice regulations in 1977 when Congress
incorporated the references to notice in the second clause of Section
2020(e)(10).  When Congress used the term "notice of adverse action,"
it was referring directly to the individual "notice of adverse action"
requirements in the Department's regulations.  And when Congress used
the term "individual notice of agency action," it could not have been
referring to mass changes, since no individual notice of mass changes
was required at that time.  The legislative history confirms this.
The House Report, H.R. Rep. 95-464, 95th Cong., 1st Sess. (1977),
contained a summary of "(t)he current Federal rules" governing fair
hearings (id. at 285), and stated that the Department's "regulations
do not require individual notice of adverse action when mass changes
in program benefits are proposed" (id. at 289).  The committee
accurately distinguished between mass changes and the requirement of
"individual notices in non-mass change adverse action contexts"
(ibid.).  See Fed. Resp. Br. 22.  /6/ This demonstrates that Congress
understood the distinction drawn by the Secretary between mass changes
and adverse actions and incorporated that distinction by its use of
the terms "individual notice" and "notice of adverse action" in
Section 2020(e)(10).  /7/

   Plaintiff-respondents' contrary argument relies heavily (Br. 27) on
the House and Senate conference reports on the Food Stamp Act of 1977.
 H.R. Rep. 95-599, 95th Cong., 1st Sess. 197 (1977);  S. Rep. 95-418,
95th Cong., 1st Sess. 197 (1977).  However, those reports do no more
than summarize the effect of the second clause of Section 2020(e)(10).
 Indeed, the reports use the term "adverse action" in precisely the
same sense in which it is used in the statute, the regulations, and
the earlier House Report.  Plaintiff-respondents' convoluted attempt
to show that Congress did not understand the meaning of the terms it
was using simply ignores the linguistic and regulatory context of the
statute and the conference reports.  /8/

   Developments subsequent to the Food Stamp Act of 1977 cast further
light on the mass change notice requirements.  At the time of the 1977
Act, Congress expressed its desire through a legislative report that
the Department provide individual notice -- not just announcements in
news media and food stamp offices -- to food stamp recipients, to
inform them of the mass changes enacted by the 1977 Act.  See H.R.
Rep. 95-464, supra, at 289.  Accordingly, by regulation, the Secretary
required that the states provide individual notice of these changes,
either by sending an "individual notice of adverse action" to each
affected household or by sending a "general notice" to all or part of
the recipient population stating the reasons for the change.  See 7
C.F.R. 273.12(e)(4).  The following year, the Secretary established a
new policy requiring general notices to be sent directly to affected
households in the event of any mass change.  See 43 Fed. Reg. 18896
(May 2, 1978) (proposed rule);  7 C.F.R. 273.12(e).  The content
requirements for these "individual" mass change notices were not
expanded;  the states were required to inform affected households of
the nature of the mass change, but were not required to provide
recipient-specific information.  With minor modification in 1981,
these regulations remain in place today.  /9/

   Plaintiff-respondents' principal response to our construction of
the statutory and regulatory notice requirements (Br. 28-30).  /10/ is
to argue that "the very purpose and structure of Section 2020(e)(10)
within the Food Stamp Act" (Br. 28) prove that notices must be
"sufficiently informative to allow participants to make a rational
decision regarding whether or not to appeal" (Br. 29).  However, this
notion -- which they dub a "matter of common sense" (Br. 30) -- is of
their own invention.  It has not been the understanding of Congress or
the Department that the notice -- even a notice of adverse action --
will necessarily be sufficient in itself to enable a recipient to
decide whether to appeal his level of benefits.  Rather, the notice is
merely one element in an informative process.

   Departmental regulations mandate that, upon request, the state
agency must provide a recipient, without charge, with "the specific
materials necessary * * * to determine whether a hearing should be
requested or to prepare for a hearing." 7 C.F.R. 273.15 (i)(1).  And
when a recipient requests a fair hearing, regulations require that he
be provided with all the documents and records pertinent to his case
before the hearing takes place.  7 C.F.R. 273.15(p)(1).  These
procedures provide ample means for recipients to make an informed
judgment on whether to file an appeal, without requiring the states to
provide extensive recipient-specific information in all notices.

   Congress has indicated that it shares this approach.  In the House
Report on the Food Stamp Act of 1977, the committee stated that
"(u)pon request, the state agency makes available without charge the
specific materials necessary for a household or its representative to
determine whether a hearing should be requested * * *." H.R. Rep.
95-464, supra, at 286.  Thus, there is no requirement that a notice,
even an adverse action notice, must provide sufficient information in
itself "to allow participants to make a rational decision regarding
whether or not to appeal" (Pl-resp. Br. 29).  Rather, the notice is
intended to inform the recipient that a change is being made, and to
provide information on where to obtain further information and how to
take an appeal.

   The function of a mass change notice is even more modest.  As
pointed out in our opening brief (at 22), mass change notices serve
the regulatory policies of enabling households to adjust their budgets
to the changes and of reducing the need for client calls and visits to
caseworkers with questions.  It is not expected that routine
computerized calculations, based on existing file data, will
ordinarily generate errors, confusion, or even controversy (except of
a legislative sort).  It does not follow from the purpose of these
notices that they must contain the elements of information that
plaintiff-respondents demand.

   Section 2020(e)(10) cannot, therefore, be read to require advance
notice of mass changes in the Food Stamp program.  The notice
requirements to which the statute refers apply solely to
household-specific "adverse actions." The mass change notice
regulation, 7 C.F.R. 273.12(e)(2)(ii), is not susceptible to a
construction that would require recipient-specific information (prior
benefit amount, new benefit amount, amount of earned income).  As
discussed above, the regulation simply requires that notice be sent to
affected households informing them of the mass change.  The
Massachusetts notice plainly satisfied this requirement.

   Even if the Department's regulations do not reflect the best, or
the only, interpretation of the notice requirements of the Food Stamp
Act, that interpretation should be upheld so long as it is "based on a
permissible construction of the statute." Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., No. 82-1005 (June 25, 1984),
slip op. 5.  /11/ The regulations in question were promulgated
pursuant to a broad, explicit delegation of legislative rulemaking
authority to the Secretary.  7 U.S.C. 2013(c);  see Knebel v. Hein,
429 U.S. 288 (1977).  Where, as here, Congress has not expressly set
the contours of a notice requirement, but "explicitly left a gap for
the agency to fill" (Chevron, slip op. 5), the agency interpretation
is entitled to particular weight.

   Policies for administration of the Food Stamp program have been
developed largely by means of regulation rather than statutory
prescription.  The original Food Stamp Act of 1964 established only
the general outlines of the program, leaving broad discretion in the
Secretary to decide how to set up and administer it.  See Pub. L. No.
88-525, 78 Stat. 703 et seq.  As has been discussed, the notice
requirements applicable to the program originated in the Secretary's
regulations;  even now, Congress has not attempted to restate the
large part of those requirements, but has presupposed those
requirements in amending the Act.  It is difficult to imagine a
stronger case for deference to the administrative interpretation.

 C. The Massachusetts Notice Satisfied Or Exceeded Constitutional
Requirements

   1. In our opening brief (at 18-34), we explained that no individual
notice whatsoever was required of the statutory change in food stamp
benefits, because Congress is free to modify noncontractual welfare
benefit levels without individual notice to affected individuals, and
to implement changes immediately.  Plaintiff-respondents have no
response other than to assert (Br. 47) that "(t)his is not a case in
which the plaintiffs have challenged the authority of Congress to
decrease the amount of the earned income disregard that they had been
receiving." They say that they seek only the ability to challenge "the
amount or fact of the specific proposed reduction in (their)
individual case" (Br. 47-48).  Apparently, plaintiff- respondents do
not challenge Congress's authority to amend the law, but only its
ability to implement it.

   Let us take a simple example.  Congress votes to reduce /12/ food
stamp benefit levels by half, effective upon enactment.  According to
plaintiff-respondents' theory, Congress could not do so.  The states
would first have to provide notice to every food stamp recipient,
informing them of the change, their former benefit level, their new
benefit level, and the method of computation.  Each recipient would
then have the opportunity to obtain a hearing in advance of the
change, to ensure that the change is computed accurately.  The result
of such a procedure, of course, would be to guarantee recipients
continued enjoyment of benefits at a level twice that established by
law.

   This scenario is in direct conflict with this Court's established
principles that food stamp benefits, like other noncontractual public
benefits, "may be altered or even eliminated (by Congress) at any
time" (United States Railroad Retirement Board v. Fritz, 449 U.S. 166,
174 (1980) (emphasis added)), and that due process hearing rights
"cannot be stretched to impose a constitutional limitation on the
power of Congress to make substantive changes in the law of
entitlement to public benefits" (Richardson v. Belcher, 404 U.S. 78,
81 (1971) (citation omitted)).  Nor can it be justified on the basis
of Goldberg v. Kelly, 397 U.S. 254 (1970) (see Pl-resp. Br. 48-49).
Goldberg involved the procedures necessary to protect an individual's
right to statutory benefits in accordance with the levels and
standards established by Congress.  If John Kelly's factual
contentions in Goldberg were correct, then he was entitled under law
to retain his prior benefits.  By contrast, in the instant case,
members of the plaintiff class are not entitled to continuation of
their prior benefits, no matter what their individual factual claims
may be.  /13/ They have no "property interest" in continuation of
their prior benefit level;  their benefits have been reduced by law.
See O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 798 (1980)
(Blackmun, J., concurring);  Kizas v. Webster, 707 F.2d 524, 537 n.64
(D.C. Cir. 1983), cert. denied, No. 83-731 (Jan. 9, 1984).  /14/

   Plaintiff-respondents contend (Br. 50) that this conclusion would
mean that a household with no earned income that was terminated from
the program would have no right to a hearing.  This is simply false.
Such a household would have a right to a hearing to challenge the
termination, just as a household would have a right to a hearing if it
simply ceased to receive benefits due to an unknown and undetected
error.  Merely because no notice need be supplied when Congress
changes benefit levels does not mean that errors, when brought to the
attention of the authorities, need not be corrected.

   2. Our opening brief (at 35-43) also demonstrated that, assuming
some notice of the change in the earned income disregard was required,
the Commonwealth's notice was sufficient.  /15/ One of the reasons for
this is that the risk of erroneous deprivation from implementation of
the change was minimal.  Plaintiff- respondents challenge this
conclusion (Br. 52-56).

   Plaintiff-respondents first challenge (Br. 53-54) our observation
that any errors caused by a backlog in the entry of monthly income
data have no bearing on this case.  They profess to find it "strange"
and the "height of audacity" to suggest that errors stemming from
preexisting deficiencies in the file data should not affect the
procedures for implementing unrelated statutory changes in benefit
levels.  However, the plain fact of the matter is that any errors
resulting from a data entry backlog would have occurred whether or not
the earned income disregard was changed.  The backlog admittedly
increased the risk of errors, but not the risk of errors resulting
from the statutory change.  And as a matter of law, the risk of
unrelated errors does not support a requirement of notice.

   Second, plaintiff-respondents attempt (Br. 54-55) to rehabilitate
the credibility of the flawed "random sample" they introduced in
district court.  While acknowledging that they included 17 pages from
a different data series in their study, they contend that this error
"merely enhances the lower courts' conclusions" (Br. 54).  The basis
for this startling contention is their unsupported assertion that none
of the cases included in the 17 erroneously considered pages contained
an erroneous reduction or termination of benefits.  The record
provides no support for this assertion.  /16/ Although logically there
should be no errors stemming from a change in the earned income
disregard in those 17 pages (since none of those households had earned
income), the same is true of the households with no earned income
properly included in the study.  Just as extraneous errors from other
causes were reflected in the households properly in the study, we
would expect that extraneous errors would be reflected in the 17 pages
improperly included.  Since we do not know how many such errors there
were, or what might be their source, we cannot rely on the study as a
whole.

   More to the point, we showed in our opening brief (at 30-31 & n.27)
that the errors actually identified in the study were attributable to
an unrelated (and promptly corrected) error in the treatment of the
$10 minimum benefit.  Plaintiff-respondents concede that this was an
"additional programming flaw" (Br. 55) -- not an error in the
calculation of the earned income disregard.  They also concede (Br.
55) that one of the two identified errors in the sample page from the
study "might have been affected by the minimum benefit error." /17/
This directly contradicts their statement that "the random sample
identified only those programming errors which logically flowed from
the nature of the change (in the earned income disregard)" (Br. 55).
The presence of unrelated errors in the study makes it useless for
purposes of this case.

   In any event, the significance of this flawed study should not be
overstated.  The principle of law at issue transcends any dispute over
the accuracy of this computer program, and the holding of this Court
will affect the administration of welfare programs across the nation.
The requirements of due process must, of necessity, be evaluated
according to a general assessment of probabilities, not according to a
post hoc view of the results in the particular instance.  The position
of the federal respondent is that mere arithmetic calculations of
revised benefit levels, based on existing data, do not give rise to
sufficient risk of error to justify requiring individualized notices
and hearings.  Moreover, we contend that the system of individual
notices and hearings is not needed or well-suited to mass changes,
since any programming error would affect thousands of recipients in
any identical fashion, and thus would be rapidly discovered and
corrected.  See O'Bannon v. Town Court Nursing Center, 447 U.S. at
799-801 (Blackmun, J., concurring).  /18/ In addition, the procedures
for reducing error built into the system (described in our opening
brief at 5-7) are constitutionally sufficient.

   Plaintiff-respondents' "random sample" does not affect the validity
of these conclusions.  The sole relevance of the "random sample,"
according to the court of appeals (Pet. App. A25), is that it
purported to show that "a number of errors did occur, the simple
ministerial nature of the change notwithstanding." Given the flaws in
the study, we believe that it has not been shown that any errors
resulted from implementation of the statutory change.  But even if
there were such errors, neither the courts below nor
plaintiff-respondents have shown any justification for a general
constitutional rule that all statutory changes in benefit levels, even
those that are accomplished by means of arithmetic calculations based
on preexisting data, must be preceded by recipient-specific notices.

   Such a constitutional rule would seriously disrupt the uniform
administration of federal benefit programs.  Program requirements for
state-administered programs are necessarily set in accordance with the
capabilities of all states, not just those that, like Massachusetts,
have a highly-developed computerized administration system.
Administrators of the Food Stamp program estimate that no more than a
dozen states would have the computer capability to generate the sort
of notice required by the courts below.  And parallel problems would
be created for Aid to Families with Dependent Children, which is
administered on a similar basis and has similar notice requirements.
See 45 C.F.R. 205.10(a)(4)(iii).  Thus, even if the district court was
correct that the detailed notice required below would have been
administratively feasible for Massachusetts (Pet. App. A75-A76) -- a
question of policy better decided by those entrusted by Congress with
administration of the program -- that conclusion should not have
served as the basis for a constitutional rule.  /19/

   Nor would the effect of an affirmance here be confined to statutory
reductions in federal welfare programs.  As pointed out in our opening
brief (at 33-34) and not answered by plaintiff-respondents, it is
difficult to find a limiting principle in the holding below.  The risk
of inadvertent computational error exists whenever the government
sends out a check, makes a deduction, or provides a benefit.  It
exists whether the benefits are reduced, increased, or kept the same.
It simply cannot be the case that whenever the government performs a
computation, it must provide advance notice with sufficient
information to enable affected individuals to check the arithmetic and
request a hearing.

   Plaintiff-respondents also exaggerate the value of
recipient-specific notices as a means of discovering and correcting
errors.  They assert (Br. 56) that the "unchallenged testimony of Dr.
Mark Bendick, a world-renowned expert on the administration of public
assistance programs" was that "errors could have been detected and
avoided in the main" through the provision of recipient-specific
information (citing J.A. 95-96).  The record does not support this
reading.  Although Dr. Bendick strongly endorsed the provision of
recipient-specific information (even in mass change situations), he
did so because it would reduce unnecessary appeals and inquiries to
the agency (J.A. 95).  Dr. Bendick expressed no opinion on whether
such notices would reduce substantive errors in food stamp allotments.

   On a common sense level, it is difficult to understand why
plaintiff-respondents place so much emphasis on receiving the old
benefit amount, the new benefit amount, and the amount of earned
income.  A recipient household would be aware of the old benefit
amount from last month's allotment and would learn the new benefit
amount from the new allotment.  And the earned income figure, by
itself, would generally be insufficient for the household to be able
to compute the change in its benefit level resulting from the
reduction in the earned income disregard, because further computations
are required before actual benefit levels can be deduced.  See 7
C.F.R. 273.10 (e)(2).  Unless the state agency were required to supply
extensive backup file data to explain the relationship of the earned
income figure to the actual benefit level (a procedure that would be
quite costly and probably beyond the capabilities of most states), the
notice would be likely more to confuse than to inform.

   This reinforces the wisdom of avoiding detailed constitutional
requirements for the contents of notices.  The essential ingredient,
as this Court held in Memphis Light, Gas & Water Division v. Craft,
436 U.S. 1, 14-15 (1978), is that the notice inform its recipient "of
the availability of a procedure for protesting" the proposed action.
The notices here satisfied this basic requirement.  /20/

   Plaintiff-respondents also state (Br. 56) that the district court
found that without recipient-specific information, "recipients could
not even discover any mistakes, much less attempt to have them
corrected." However, as pointed out above (see pages 15-16, supra),
neither Congress nor the Department has intended that notices be the
recipients' sole source of information.  Thus, while it is true that
mistakes might not be detected on the basis of the notice alone,
recipients would quickly become aware of their new benefit levels when
their allotment card arrived about ten days later;  if they had any
doubts about the correctness of the allotment, they would have the
right to "the specific materials necessary * * * to determine whether
a hearing should be requested" (7 C.F.R. 273.15 (i)(1);  and they were
fully informed about how to obtain further information or a hearing.
Indeed, plaintiff-respondents' own expert, Dr. Bendick, testified that
the "tendency" of a food stamp recipient under these circumstances is
"to approach the agency to seek clarification of the information"
(J.A. 96).  Thus, although recipient-specific notices might provide
information more quickly, and with fewer unnecessary inquiries to the
agency, it simply is not true that they are indispensable for
recipients to discover mistakes or have them corrected.  /21/

   The notices actually provided by the Commonwealth contained no
inaccuracies that have been identified in this litigation, /22/ used
terms that are "generally familiar" to food stamp recipients (Pet.
App. A96), and were sufficiently informative to enable each of the
named plaintiffs, whose claims are representative of the class (Fed.
R. Civ. P. 23(a)), to file an appeal and obtain a fair hearing.
Certainly the notices could have been clearer or contained more
information, but the Constitution does not require it.  The proper
avenue for seeking improvements in the form and content of mass change
notices in the Food Stamp program is to request changes from the
states and the Department (or Congress) -- not to sue in federal
court.

 II. THE DISTRICT COURT'S REMEDIAL ORDER WAS BEYOND THE COURT'S
STATUTORY AND EQUITABLE AUTHORITY AND IN VIOLATION OF SOVEREIGN
IMMUNITY

 A. Neither The Food Stamp Act Nor Principles Of Equitable Discretion
Justify The District Court's Order To Provide Food Stamp Benefits In
Amounts Exceeding The Level Established By Congress

   The district court ordered the Commonwealth to "return" all food
stamps benefits "lost" to the plaintiff class as a result of the
action taken pursuant to the December notice, for the period between
January 1, 1982, and the earliest of the household's recertification,
the date the household was terminated or withdrew for other reasons,
or the date the household was provided a legally sufficient notice
(Pet. App. A101).  The effect was to require the Commonwealth to pay
food stamp benefits at a level higher than that set by Congress for a
period of up to one year.

   The court of appeals reversed this remedial order.  The court
pointed out that there had been no "showing that a substantial
percentage of these recipients had their benefits improperly reduced
or terminated" (Pet. App. A33).  The court reasoned, therefore, that
"(r)  estoration of benefits would constitute a windfall to recipients
and would result in the continuation of benefits at a level exceeding
that authorized by Congress" (ibid).  /23/

   Plaintiff-respondents challenge this holding.  They contend, in the
alternative, that the plaintiff class was correctly awarded the
retroactive benefits as a matter of statutory entitlement under 7
U.S.C. 2023(b) and that the remedial order was within the district
court's equitable discretion.  Neither argument has merit.  /24/

   1. The statute upon which plaintiff-respondents rely, 7 U.S.C.
2023(b), provides:

      In any judicial action arising under this chapter, any food
      stamp allotments found to have been wrongfully withheld shall be
      restored only for periods of not more than one year prior to the
      date of the commencement of such action * * *.

   Reasoning that "actions taken in violation of federal statutory and
regulatory procedural requirements are 'wrongful'" (Br. 42),
plaintiff-respondents contend that whenever a procedural error occurs
in the course of effectuating a reduction in benefits, the allotment
is "wrongful," whether or not the allotment is substantively correct.
Thus, in the instant case, even though Congress lawfully reduced food
stamp benefits for recipients with earned income, the allotments of
the plaintiff class were "wrongfully withheld" because the
Commonwealth's notice of the lawful reductions was inadequate.

   This position is absurd on its face and would, as the court of
appeals stated, result in a "windfall" to plaintiff- respondents.
Plaintiff-respondents themselves acknowledge that their right at stake
in this litigation is "not * * * the right to the continued receipt of
any given amount of benefits, but rather the right to the receipt of
the correct amount of benefits" (Br. 49).  The "correct" amount of
benefits is the amount voted by Congress, no more and no less.  We
simply fail to see how the plaintiff class could be entitled to
"benefits at a level exceeding that authorized by Congress" (Pet. App
.A33), or could contend that the Commonwealth's failure to pay them
benefits exceeding the statutory level constituted a wrongful
withholding of benefits.  While the court of appeals concluded
(incorrectly, in our view) that proper notice was wrongfully withheld,
it does not follow that any food stamp allotments were wrongfully
withheld.

   In any event, the legislative history of Section 2023(b) shows that
the restoration remedy was intended for substantive errors in food
stamp allotments, not procedural errors that did not affect the
outcome.  Section 2023(b) is a limit on the period of time for which
courts in judicial review proceedings may restore benefits to states,
retail establishments, or households.  It is parallel to Section
2020(e)(11), which requires the states to provide for "the prompt
restoration in the form of coupons to a household of any allotment or
portion thereof which has been wrongfully denied or terminated" for a
period of up to a year from the discovery or notification of the
error.  Both sections find their origin in prior regulatory
provisions.

   Prior to the Food Stamp Act of 1977, the Food Stamp program
required participants to purchase their food stamp coupons with cash.
7 U.S.C. (1976 ed.) 2016(b).  The coupons were sold at a discount.
The difference between the value and the cost of the coupons was known
as the "bonus." Initially, the Department required the states to
recompense participants, by means of cash refunds, only when the
household had "been overcharged for its coupon allotment as a result
of an error by the State Agency" (37 Fed. Reg. 25322 (Nov. 30, 1972)
(emphasis added)).  The cost of such refunds was borne by the federal
government.  No retroactive adjustments were required for wrongful
terminations or determinations of ineligibility, or for errors that
resulted in the receipt of fewer food stamps than the household was
entitled to.  This was on the theory that injuries to past food
consumption could not be remedied.  Bermudez v. Department of
Agriculture, 490 F.2d 718, 720 n.2 (D.C. Cir.), cert. denied, 414 U.S.
1104 (1973).  This interpretation of the Food Stamp Act was rejected
by some federal courts.  Carter v. Butz, 479 F.2d 1084 (3d Cir.),
cert. denied, 414 U.S. 1094 (1973);  Bermudez, supra.  /25/

   In response to Bermudez, the Department adopted a new regulation
that required states to provide retroactive corrections for
substantive errors in benefit amounts, ineligibility determinations,
or terminations (41 Fed. Reg. 11466 Mar. 19, 1976), codified at 7
C.F.R. 271.1 (q) (1977) (emphasis added)):

         Whenever an administrative error on the part of the State
      agency results in a household receiving fewer bonus stamps than
      it is entitled because the total coupon allotment received (if
      any) was smaller than the amount for which the household was
      actually eligible, the household shall be entitled to
      restoration of lost benefits.

   In the Food Stamp Act of 1977, Congress discontinued the cash
purchase system for food stamps.  In amending the statutory scheme,
Congress codified the regulatory benefit restoration provision, using
terminology more appropriate to the revised system.  This is the
origin of 7 U.S.C. (Supp. II 1978) 2020(e)(11):

      The State plan of operation * * * shall provide, among such
      other provisions as may be required by regulation --

                      * * * * *

      (11) for the prompt restoration in the form of coupons to
      households of any allotment or portion thereof which has been
      wrongfully denied or terminated.

   See Pub. L. No. 95-113, Section 1301, 91 Stat. 972.  Nothing in the
legislative history suggests that Congress intended to alter the scope
of the restoration provision;  indeed, the House Report referred
explicitly to the prior regulation as explanation for the provision.
H.R. Rep. 95-464, supra, at 283-284.  The report described the effect
of Section 2020(e)(11) as follows (H.R. Rep. 95-464, supra, at 285
(emphasis added)):

      Thus, if a household lost benefits because it was found to be
      ineligible when it was eligible or because its allotment was not
      as high as it should have been such benefits would be recouped
      in the form of allotment add-ons.

   The statutory phrase "allotment * * * which has been wrongfully
denied or terminated" (7 U.S.C. 2020(e)(11)) thus refers to "lost
benefits," i.e., substantive errors in allotment amount -- not to
procedural errors having no effect on the level of benefits.

   Nor did the addition of 7 U.S.C. 2023(b) in 1981 create a right to
retroactive readjustments for non-substantive errors.  The 1981
amendments to the Food Stamp Act, in relevant part, Pub. L. No. 97-98,
Section 1320, 95 Stat. 1286-1287, limited the period of restoration of
wrongfully withheld benefits to one year prior to discovery of the
error.  This was done by means of addition of a new clause to Section
2020(e)(11)and of a new Section 2023(b) to ensure that judicial
remedies would be coextensive with administrative remedies.  The
legislative history makes clear that the sole purpose of this
amendment -- and thus the sole purpose of Section 2023 (b) -- was to
limit the federal government's liability to restore "lost" food stamps
benefits.  H.R. Rep. 97-106, 97th Cong., 1st Sess. 11, 60 (1981).  It
would have been entirely inconsistent with the cost-saving emphasis of
the 1981 legislation (see id. at 55-58) to expand liability to include
mere procedural errors that were not subject to the restoration
provision under prior law.  It is therefore clear that Section
2023(b), on which plaintiff-respondents rely, does not create a right
to retroactive benefits for nonsubstantive errors in food stamp
administration.

   The conclusion that food stamp recipients are not entitled to
retroactive benefit adjustments where their benefits were
substantively correct is underscored by the provision for state
recoupment of excess food stamp benefits from recipient households.
If the household receives a continuation of benefits at the prior
level during the pendency of a fair hearing (see 7 U.S.C. 2020(e)(10)
(second clause);  7 C.F.R. 273.15(k)), and the state agency action is
upheld, "a claim against the household shall be established for all
overissuances." 7 C.F.R. 273.15(k)(1);  see also 7 C.F.R.
273.18(b)(1)(iii).  /26/ In the absence of a substantive error in the
food stamp allotment, the household is required to return all excess
benefits it received during the pendency of the fair hearing.  If
members of the plaintiff class had received sufficient notice and had
taken an appeal, they would not have been permitted to keep any
benefits over the level to which they were substantively entitled;
under no circumstances could they have retained a level of benefits in
excess of that set by Congress.  To grant members of the plaintiff
class enhanced benefits to which they were not substantively entitled,
therefore, does not merely "restor(e) the status quo existent before
the Department's unlawful action," as plaintiff-respondents suggest
(Br. 45);  it gives them, as the court of appeals recognized, a
windfall.

   This demonstrates the fallacy in plaintiff-respondents' argument
(Br. 38) that Congress intended to create a system in which "most
households would receive, for a time, benefits at a level that is
substantively incorrect." The rationale for the benefits continuation
provision on which plaintiff-respondents rely is that the state,
rather than the recipient, can better afford to stake the disputed
amount while the question is being resolved.  If, after the hearing,
it is determined that the state's proposed action was proper, the
household is required to pay back the excess.  This does not, as
plaintiff-respondents contend (Br. 39), support the view that food
stamp households have a permanent "substantive entitlement to receive
their prior level of benefits" during the hearing process.

   Plaintiff-respondents' reliance on this score on Sampson v. Murray,
415 U.S. 61 (1974), is misplaced.  Sampson established merely that
under the express terms of the Back Pay Act, a Civil Service employee
who is "found by appropriate authorities under applicable law or
regulation to have undergone an unjustified or unwarranted personnel
action" is entitled to reinstatement with back pay.  415 U.S. at 75 &
n.31 (quoting 5 U.S.C. (1970 ed.) 5596(b)).  See also Army & Air Force
Exchange Service v. Sheehan, 456 U.S. 728, 740 (1982) (citation
omitted) (Back Pay Act "expressly provide(s) money damages as a remedy
against the United States in carefully limited circumstances").  Civil
Service regulations, in turn, expressly permitted employees to appeal
dismissals "on the ground that (their) termination was not effected in
accordance with the procedural requirements of (the regulations)."
Sampson, 415 U.S. at 66 n.7 (quoting 5 C.F.R. 315.806(c) (1973)).  The
Food Stamp Act contains no such feature.

   In this connection, a comparison of Sampson to Codd v. Velger, 429
U.S. 624 (1977), is instructive.  In Codd, the plaintiff, a
probationary employee who was discharged without a hearing on the
basis of derogatory information placed in his file, sought job
reinstatement and compensatory damages as a remedy for the denial of a
hearing.  /27/ This Court held, however, that he was not entitled to
these remedies, because he had not alleged that there was an actual
substantive error in the decision that had been made.  "(I)f the
hearing mandated by the Due Process Clause is to serve any useful
purpose, there must be some factual dispute between an employer and a
discharged employee which has some significant bearing on the
employee's (liberty interest)." Id. at 627.

   Codd thus demonstrates that the provision of retroactive monetary
relief for procedural errors under the Back Pay Act, as discussed in
Sampson, does not extend beyond the scope of that Act -- even within
the field of public employment.  Even more farfetched is
plaintiff-respondents' attempt to stretch the analogy of the Back Pay
Act to create an implied right to enhanced benefits under the Food
Stamp Act.

   2. It follows that the district court's order cannot be justified
as an exercise of its equitable discretion.

   In the exercise of its discretion, a court is not free to disregard
other laws.  Specifically, as this Court has stated, the courts have a
"duty * * * to observe the conditions defined by Congress for charging
the public treasury." Schweiker v. Hansen, 450 U.S. 785, 788 (1981);
Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 385 (1947).
The level of food stamp benefits is established by Congress, not by
the states or by the Secretary.  As a general matter, a court's
remedial authority is confined to the scope of discretion vested in
the parties before the court;  the court may not order a party to take
actions outside his authority or in violation of law.  In this
instance, the court plainly erred in requiring the Commonwealth to pay
benefits "at a level exceeding that authorized by Congress" (Pet. App.
A33).  Even if Massachusetts officials committed a procedural
violation, the statutory benefit levels must still be honored.  Cf.
Schweiker v. Hansen, supra.

   Plaintiff-respondents' position is directly in conflict with this
Court's precedents.  Codd v. Velger, supra, already discussed, stands
for the proposition that, in the absence of a statutory provision to
the contrary, the denial of a procedural protection does not give rise
to a right of restitution or compensatory damages unless the
procedural violation resulted in a substantive deprivation.

   This Court's unanimous decision in Carey v. Piphus, 435 U.S. 247
(1978), is to similar effect.  In Carey, the plaintiffs, high school
students who were suspended from school without procedural due
process, sought compensatory damages for the period of their exclusion
from school.  This Court held that the students could not recover such
damages if the school officials could show on remand that they would
have been suspended even if a proper hearing had been held.  435 U.S.
at 260.  The Court reasoned that, if the students would have been
suspended anyway, "the failure to accord procedural due process could
not properly be viewed as the cause of the suspensions." Ibid.
Indeed, the Court stated that an award of damages under such
circumstances "would constitute a windfall, rather than compensation,"
to the students.  Ibid.  /28/

   The problem here is analogous.  If the food stamp benefits of the
plaintiff class would have been reduced even if the Commonwealth had
provided sufficient notice, then the reductions were not caused by the
supposed due process violation.  The only relief to which
plaintiff-respondents could be entitled, as the court of appeals held,
is restoration of any benefits lost as a result of substantive
computational errors.  To award retroactive benefits to members of the
plaintiff class whose food stamp allotments were correctly computed,
at a level in excess of that authorized by law, would not be
"restitution," as plaintiff-respondents characterize it (Br. 44, 47).
It would "constitute a windfall" (Carey, 435 U.S. at 260).

   Contrary to plaintiff-respondents' argument (Br. 41-42, 45-46),
this Court's decisions in United States ex rel. Accardi v.
Shaughnessy, 347 U.S. 260 (1954), and Vitarelli v. Seaton, 359 U.S.
535 (1959), do not establish that the federal courts have general
equitable authority to order retroactive relief against the federal
government or the states.  In both cases, the courts applied express
statutory remedies.  Vitarelli arose under the Administrative
Procedure Act (see United States v. Caceres, 440 U.S. at 754 & n.18),
which provides that a court may "set aside agency action" that is
found to be "without observance of procedure required by law." 5
U.S.C. 706 (2)(D).  /29/ Accardi arose under habeas corpus (347 U.S.
at 261), pursuant to which a court may ascertain whether the detention
of an alien for purposes of deportation is, for any reason, unlawful.
Ekiu v. United States, 142 U.S. 651, 662 (1892).  Neither case
involved the inherent powers of the court or the retroactive grant of
benefits, without statutory authority, to persons who were not
substantively entitled to them.

 B. The District Court's Award Of Retroactive Benefits Is Precluded By
The Eleventh Amendment And Principles Of Sovereign Immunity

   This Court held in Edelman v. Jordan, 415 U.S. 651, 663 (1974),
that a suit by private parties against a state for retroactive
payments of welfare benefits found to have been wrongfully withheld is
barred by the Eleventh Amendment, unless the state has consented to
suit.  The same principles preclude an order of retroactive benefits
in the instant case.

   The district court's order, while nominally running against the
Commissioner of Public Welfare, will in reality be satisfied "from the
general revenues of the (Commonwealth of Massachusetts)." Edelman, 415
U.S. at 665.  See also Pennhurst State School & Hospital v. Halderman,
No. 81-2101 (Jan. 23, 1984), slip op. 10-11;  Dugan v. Rank, 372 U.S.
609, 620 (1963);  Ford Motor Co. v. Department of Treasury, 323 U.S.
459, 464 (1945).  Since the Commonwealth has not consented to suit for
payment of benefits in excess of those authorized by Congress, the
district court's award cannot stand.

   The Commonwealth cannot be said to have consented to suit merely by
virtue of its participation in the Food Stamp program.  Florida
Department of Health & Rehabilitative Services v. Florida Nursing Home
Ass'n, 450 U.S. 147 (1981);  Edelman, 415 U.S. at 673.  In its plan of
operation, the Commonwealth was required to agree to provide for "the
prompt restoration * * * of any allotment or portion thereof which has
been wrongfully denied or terminated," for a period of up to one year
prior to discovery of the error.  7 U.S.C. 2020(e)(11).  As explained
above (at 30-32), this provision applies only to substantive errors in
the amount of food stamps allotted;  it does not create an obligation
to pay compensation for mere procedural errors.  Nowhere else in the
plan of operation or the statutory scheme is there any support for the
proposition that the Commonwealth has consented to be sued for
retroactive benefits in excess of those authorized by Congress.

   The court of appeals rejected the Commonwealth's Eleventh Amendment
argument solely because "the cost of the food stamp program is borne
by the federal government" (Pet. App. A36 n.6).  However, the federal
government ultimately only bears the cost of redeeming food stamp
coupons issued in compliance with the Act.  The federal government is
not obligated to bear the cost of benefits in excess of those
authorized by Congress, whether they were issued erroneously by the
Commonwealth or required to be issued as a result of a procedural
violation by the Commonwealth.  Should the district court's order be
reinstated, the Secretary would be authorized to attempt to recover
the cost from the Commonwealth.  See note 23, supra.

   In any event, an order for retroactive payment of benefits would be
equally barred by sovereign immunity if it ran against the federal
government instead of the Commonwealth.  The federal government, no
less than the Commonwealth, is protected against retroactive monetary
liability in the absence of consent, even for due process violations.
United States v. Testan, 424 U.S. 392, 399 (1976);  see Larson v.
Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949);  Monaco v.
Mississippi, 292 U.S. 313, 321 (1934).  And the United States has
plainly not consented to be sued for food stamp benefits in excess of
those authorized by Congress, on account of procedural derelictions by
a state.  /30/ There is no federal statute that "can fairly be
interpreted as mandating compensation by the Federal Government for
the damage sustained." Testan, 424 U.S. at 400 (citation omitted).

   Whether the district court's order would ultimately result in
liability against the Commonwealth or the United States is, therefore,
immaterial;  under either contingency the suit would be barred.

 C. The District Court Was Not Justified In Requiring the Commonwealth
To Undertake Rulemaking Under Court Supervision

   Congress has entrusted responsibility for administering the Food
Stamp program to the Secretary and the states.  The district court's
order usurped the Commonwealth's authority to determine whether
regulations are needed, and assumed an unwarranted degree of judicial
control over the rulemaking result.  /31/ Such a remedy is extreme, to
be imposed only where there is clear evidence that the state involved
will not comply with the law.  See Allen v. Wright, No. 81-757 (July
3, 1984) slip op. 21 ("suits challenging * * * the particular programs
agencies establish to carry out their legal obligations * * * are
rarely if ever appropriate for federal-court adjudication");  Rizzo v.
Goode, 423 U.S. 362, 378 (1976) (quoting Stefanelli v. Minard, 342
U.S. 117, 120 (1951) ("(w)here, as here, the exercise of authority by
state officials is attacked, federal courts must be constantly mindful
of the 'special delicacy of the adjustment to be preserved between
federal equitable power and State administration of its own law'");
Laird v. Tatum, 408 U.S. 1, 15 (1972) (federal courts should not act
"as virtually continuing monitors of the wisdom and soundness of
Executive action").

   The district court's requirement that the Commonwealth's
regulations be submitted to the court for advance approval is
particularly inappropriate in light of the congressional determination
to preclude federal advance approval of state agency methods of
administration.  See Pub. L. 97-253, Section 166, 96 Stat. 779,
codified at 7 U.S.C. 2020(d).  It would require quite unusual
circumstances -- wholly absent here -- to justify a federal court in
assuming administrative supervision authority that Congress has
explicitly denied to the Secretary.

   In this case, the district court made no findings, and supplied no
rationale, that would support the remedial order.  One can only guess
whether the district court issued the order with due regard for the
adequacy of alternative, less-intrusive remedies or with due respect
for the sovereignty of the Commonwealth of Massachusetts.  Contrary to
plaintiff-respondents' assertion (Br. 31), the district court
manifestly did not indicate that it was "cognizant" of the factors it
should consider in deciding whether to impose injunctive relief on a
state.  Thus, the normally deferential scope of appellate review of
routine district court decisions whether to issue injunctions, where
the court's articulation of the basis for its decision indicates that
it has exercised its discretion within appropriate bounds (see United
States v. W.T. Grant Co., 345 U.S. 629, 633 (1953)), would have been
out of place in reviewing this unusual and unexplained order.

   In any event, the court of appeals correctly observed that there is
nothing in the record to indicate that the Commonwealth has acted in
bad faith, and no reason to doubt that it will comply with legal
requirements in the future (Pet. App. A37-A38).  See W.T. Grant Co.,
345 U.S. at 633 ("(t)he necessary determination (for the granting of
injunctive relief) is that there exists some cognizable danger of
recurrent violation, something more than the mere possibility which
serves to keep the case alive").  The court of appeals' conclusion is
well supported by the record.  The Commonwealth was in facial
compliance with federal regulations governing the question of notice.
Therefore, even if the Commonwealth and the federal respondent are
incorrect in the submission that those regulations are consistent with
statutory and constitutional standards, the Commonwealth had every
reason to believe that its action was lawful.  /32/ Especially in the
absence of any findings or explanation by the district court, the
court of appeals was fully justified in concluding that no injunction
was necessary to ensure future compliance, and that continuing
judicial surveillance of the Commonwealth's administrative decisions
would be inappropriate.

   Plaintiff-respondents rely principally (Br. 31, 35-36) on Hecht Co.
v. Bowles, 321 U.S. (1944), and Califano v. Yamasaki, 442 U.S. 682
(1979).  In Hecht Co., however, this Court affirmed the district
court's refusal to grant an injunction, rejecting the government's
argument that, in the circumstances of that case, an injunction was
mandatory.  321 U.S. at 330-331.  The Court's statement that "(t)he
historic injunctive process was designed to deter, not to punish" (id.
at 329) was not, as plaintiff respondents suggest (Br. 35), an
instruction to the lower courts to disregard the good faith of the
parties;  on the contrary, to the extent that Hecht Co. has any
bearing on this case, it supports the court of appeals' position that
an injunction is not appropriate unless it is likely to be necessary
to deter unlawful conduct in the future.

   Plaintiff-respondents' reliance on Yamasaki is similarly
unavailing.  There, the Court simply affirmed (442 U.S. at 705-706)
that injunctive relief is available under Section 205(g) of the Social
Security Act, 42 U.S.C. (Supp. V) 405(g);  the Court did not address
whether an injunction was "appropriate" under the circumstances of the
case, as plaintiff- respondents state (Br. 34-36).

   Nothing in these or any other decisions of this Court suggests that
the good faith of the defendant and the likelihood of voluntary
compliance in the future are improper factors for an appellate court
to consider when reviewing the grant of injunctive relief.  /33/

                              CONCLUSION

   For the foregoing reasons and those stated in our opening brief,
the judgment of the court of appeals on the issue of the validity of
the Commonwealth's notice should be reversed;  but if it is affirmed,
the judgment of the court of appeals on the issue of remedy should
also be affirmed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   RICHARD K. WILLARD

      Acting Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   MICHAEL W. McCONNELL

      Assistant to Solicitor General

   LEONARD SCHAITMAN

   BRUCE G. FORREST

      Attorneys

   SEPTEMBER 1984

   /1/ The additional discussion of Section 2020(e)(10) to which
plaintiff-respondents refer (Br. 19) was necessary to establish that
the statute applies at all to mass changes (a conclusion with which we
disagree);  having found that it applies, the court based its holding
that the statute was violated solely on its conclusion that the
statute would, at a minimum, have to incorporate what the court of
appeals believed to be the constitutional standard.

   /2/ Moreover, the Commonwealth, in its petition, challenged the
standard of review applied by the court of appeals to the district
court's factual findings.  This question perforce applies to both the
constitutional and the statutory holdings below.

   /3/ Even a notice of adverse action need not necessarily contain
all of the information plaintiff-respondents seek.  7 C.F.R.
273.13(a)(2)(1983).  The notice must contain a description of the
"proposed action," but need not necessarily contain the former benefit
level, the new benefit level, and other information "(s)  ufficient *
* * to allow the recipient to determine whether an error has been
made." Cf.Pet.App.A103-A104.  This Court need not decide what
information is required under the adverse action regulations, since,
as the court of appeals held (Pet.App.A28-A29), those regulations do
not apply to a mass change, such as that involved in this case.

   /4/ Plaintiff-respondents contend (Br. 28) that the term
"individual notice," which is found in both the mass change regulation
and in 7 U.S.C. 2020(e)(10), necessarily "contains the requirement for
recipient-specific information." Indeed, they suggest (Br. 29) that,
to be "individual notice," the notice must "include at least the
amount of the proposed reduction to each household and the earned
income figure upon which that reduction was premised." This argument
has no merit.  "Individual" notice simply means notice provided to
each individual household;  the term indicates that general notice to
the public through the Federal Register or the mass media is not
sufficient.  See pages 13-14, infra, discussing the 1978 change in the
mass change notice regulation, which makes this clear.

   /5/ An alternative explanation is that the mass change regulations
impose the same recipient-specific notice requirements as are mandated
for adverse actions.  Presumably, this is what plaintiff-respondents
mean when they state (Br. 28 n.16) that the Secretary "did seem to
recognize that the notice (of mass changes) would require
recipient-specific information." However, this would make nonsense of
the explicit statements in 7 C.F.R. 273.12(e)(2)(ii) and 7 C.F.R.
273.13(b)(1) that the requirements for notice of adverse actions do
not apply to mass changes.  That the mass change regulation uses the
term "individual notice" does not (as explained at note 4, supra)
imply that the notice must include recipient-specific information.
And the reference in the mass change regulation to the requirement of
a fair hearing in cases where "the issue being appealed is that the
food stamp eligibility or benefits were improperly computed" is no
more than a recognition that, when such an error is discovered at any
time, with or without notice, the recipient has a right to a fair
hearing.  Experience shows that notice of a mass change often induces
recipients to investigate the correctness of their benefits, and
sometimes to discover an underlying error.  Indeed, this happened in
the case of two of the four named plaintiffs in this action.  See Fed.
Resp. Br.11-12 n.16.

   /6/ Plaintiff-respondents disparage the significance of these
statements of Congress's understanding on the basis that this House
Report was written in 1976, before the second clause of what is now
Section 2020(e)(10) was enacted (Br. 26).  That, however, is of no
significance:  the statements were a description of the regulatory
notice requirements as they existed at that time, not a description of
the legislation.  In any event, the 1977 Act did not alter the scope
of the prior regulatory notice requirements.

   /7/ As plaintiff-respondents point out (Br. 26) the second clause
of Section 2020(e)(10), which employs the "individual notice" and
"adverse action" terminology, was added to the legislation during
committee mark-up, without any suggestion that a different meaning was
intended.  Had Congress intended to invalidate the Department's
regulations and to renounce the well-recognized distinction between
mass changes and adverse actions, it surely would have included some
explanation to that effect in the legislative history.

   /8/ Plaintiff-respondents attempt to draw a distinction (Br. 27)
between "notice of adverse action" -- the term used in the regulations
and the statute -- and "notice of the adverse action," which is used
in the conference reports.  The context convincingly demonstrates,
however, that Congress did not intend these formulations to convey a
substantive difference in meaning.

   /9/ Plaintiff-respondents argue (Br. 29-30) that the final clause
of Section 2020(e)(10), which was added in 1982 (Pub. L.No. 97-253,
Section 171, 96 Stat. 780), indicates that mass changes must be
treated in the same way as adverse actions under Section 2020(e)(10).
This does not follow.  This final clause permits states to effectuate
changes in food stamp benefits without notice or hearing where the
information on which the change is made is provided by the recipient
household.  Such reductions are, by definition, household-specific.
But for the 1982 amendment, they would be subject to the adverse
action notice and hearing requirements.  That Congress exempted such
changes from the adverse action requirements carries no implication
that mass changes -- which were not subject to such requirements --
are encompassed by Section 2020(e)(10).

   Indeed, as pointed out in our opening brief (at 33-34), the same
principle reflected in the final clause of Section 2020(e)(10) would
suggest that no notice of hearing is required for mass changes.  The
two situations are similar in that they entail no factual disputes and
the only risk of error is computational.  The governmental interest in
prompt effectuation of such factually-uncontested changes (in both
situations) outweights the very slight risk that, without notice and a
hearing, computational errors would occur.  And, of course, should a
household discover that its allotment was incorrectly computed in
either situation, it would be protected by its right to a fair
hearing.

   /10/ Plaintiff-respondents' linguistic arguments, based on the
supposed ordinary definition of the terms "adverse action" (Br. 24-25)
and "individual" (Br. 28-29) have already been dealt with.
Plaintiff-respondents' proffered definitions are at odds with the
meaning of the terms as revealed by their regulatory context and by
the legislative history.

   /11/ See also, inter alia, Aluminum Co. of America v. Central
Lincoln Peoples' Utility District, No. 82-1071 (June 5, 1984), slip
op. 8;  American Paper Institute, Inc. v. American Electric Power
Service Corp., No. 82-34 (May 16, 1983), slip op. 19-20;  FEC v.
Democratic Senatorial Campaign Committee, 454 U.S. 27, 39 (1981);
Udall v. Tallman, 380 U.S. 1, 16 (1965).

   /12/ The example is equally apt if Congress votes to increase
benefits in other entitlements programs, such as Aid to Families with
Dependent Children, Social Security, or Supplemental Security Income.
Such increases (because they would affect a household's unearned
income) would entail reductions in food stamp benefits.  Indeed, this
is the more common type of "mass change." See 7 C.F.R. 273.12(e)(2)(i)
and (3)(i).

   /13/ As noted in our opening brief (at 19-20 n.20), there is no
need in this case to consider the different questions that would arise
if a congressional change in benefits required new factual
determinations.

   /14/ Plaintiff-respondents argue (Br. 49) that this position was
rejected in Yee-Litt v. Richardson, 353 F. Supp. 996 (N.D. Cal.),
aff'd summarily, 412 U.S. 924 (1973).  However, Yee-Litt affirmed the
distinction between factual determinations and legal changes, required
due process procedures where the distinction, as drawn by the state,
was so unclear and unmanageable that it resulted in the denial of
"pre-termination hearings to welfare recipients who have raised
factual issues on appeal." 353 F. Supp. at 999 (emphasis added).

   /15/ The court of appeals, relying on First Circuit precedent
antedating Bose Corp. v. Consumers Union of United States, Inc., No.
82-1246 (Apr. 30, 1984) (see, e.g., Lynch v. Dukakis, 719 F.2d 504,
513 (1st Cir. 1983)), reviewed the district court's findings on this
and other aspects of the due process analysis under the "clear error"
standard of Fed. R. Civ. P. 52(a), even though it recognized those
findings as ones of mixed law and fact (Pet. App. A19).  The court of
appeals concluded that, since the district court had "applied the
appropriate legal standard, the Mathews balancing test," its task was
"limited" to reversing only for clear error (Pet. App. A20).  As we
pointed out in our opening brief (at 32 n.30), the application of the
"clear error" standard to mixed questions of law and fact was rejected
by this Court in Bose Corp., slip op. 15.  Plaintiff-respondents'
treatment of this issue (Br. 64-68) is totally unresponsive.  Our
point is not that "Rule 52(a) is inappropriately applied in cases
involving constitutional adjudication" (Pl-resp. Br. 66), but that it
is inappropriately applied to mixed questions of law and fact.  The
holding in Bose Corp. on which we rely was not, as
plaintiff-respondents contend (Br. 65) "expressly limited" to
determinations of actual malice in libel suits.  See Bose Corp., slip
op.15.

   /16/ The full "random sample" is not in the record;  only two
representative pages were introduced.

   /17/ We do not understand why plaintiff-respondents assert (Br. 55)
that the other erroneously-treated household on the sample page from
the study was unaffected by the minimum benefit error.  The household
had been receiving the minimum benefit, and then was erroneously
terminated.  Although it cannot be known with certainty, the most
logical deduction is that this error stemmed from the same source.
(It seems more than a coincidence that every household in the study
identified as suffering an error had previously been receiving the $10
minimum benefit.) In any event, since the household had no earned
income, it is clear that the error did not result from the change in
the earned income disregard.  That is the only fact of significance to
this litigation.

   /18/ As Justice Blackmun stated, "When governmental action affects
more than a few individuals, concerns beyond economy, efficiency, and
expedition tip the balance against finding that due process attaches."
O'Bannon, 447 U.S. at 800.  Here, the change in the earned income
disregard affected some 16,000 residents of Massachusetts.  It is
foolish to suppose that a computer error affecting all or large
classes of these individuals would be corrected through the process of
individual hearings.  Rather, the error (if any) would be promptly
identified and corrected for the entire class, as was the case with
the Commonwealth's error in the calculation of the $10 minium benefit
(J.A. 49,250).

   /19/ In this connection, we would reiterate the concern expressed
in our opening brief (at 36 n.31) that the test announced in Mathews
v. Eldridge, 424 U.S. 319 (1976), may not be appropriate for
evaluating the sufficiency of notice.  Plaintiff- respondents (Br. 51
n.33) call this problem a "red herring," claiming that the Eldridge
analysis is simply a "further refinement" of the notice standards of
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), and
Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978).
However, the Mullane-Memphis Light standard for sufficiency of notice
is set in terms of objective reasonableness, which will not change
from case to case or state to state.  The Eldridge factors, by
contrast, are essentially a cost-benefit standard.  As applied by the
courts below, notice requirements under the Eldridge standard will
vary according to the capabilities of various states under various
contingencies.  As we pointed out (Br. 36 n.31), and
plaintiff-respondents have not answered, the government's inability to
anticipate what standards might be imposed by the courts under
Eldridge creates serious risks of disruption of the program.

   /20/ Plaintiff-respondents misleadingly truncate a quotation from
Memphis Light that underscores our point (Br. 62, quoting Memphis
Light, 436 U.S. at 14-15 n.15):

      Here, however, the notice is given to thousands of customers of
      various levels of education, experience and resources.  Lay
      consumers of electric service, the uninterrupted continuity of
      which is essential to health and safety, should be informed
      clearly....

Deleted from the end of this quotation was the following:

      of the availability of an opportunity to present their
      complaint.  In essence, recipients of a cutoff notice should be
      told where, during which hours of the day, and before whom
      disputed bills may be considered.

   /21/ The district court's finding on this point (Pet. App.A70-A71)
was simply that recipients could not detect errors on the basis of the
notice;  the court did not imply that it was not possible through
other readily available sources of information.

   /22/ Plaintiff-respondents assert, without elaboration, that the
notices contained "misleading language" (Br. 61);  however, they have
never identified any inaccuracies or suggested any ways in which the
notices might plausibly have been misinterpreted.

   /23/ The court also stated that the order of retroactive benefits
would not provide any incentive to the states to correct the problem
-- and indeed might even be seen as an "attractive possibility" --
since the federal government fully finances the Food Stamp program and
thus would bear the cost.  While this point has considerable validity
as a practical matter, it should be noted that, as a legal matter, the
state might ultimately be obligated to bear the cost of such an order
under some circumstances.  Although the federal government would
redeem the additional food stamps in the first instance (7 U.S.C.
2013(a)), the Secretary is authorized to recover from the states the
cost of certain overissuances.  7 U.S.C. 2020(g);  see also 7 U.S.C.
2016(f), 2025(d);  Woods v. United States, 724 F.2d 1444 (9th Cir.
1984).  If a state's failure to comply with statutory or
constitutional standards in providing notice is the cause of payments
in excess of the statutory level, the Secretary might be justified in
recovering the excess amount from the state.

   /24/ If this Court agrees with our submission that the
Massachusetts notices did not violate the Constitution, the Food Stamp
Act, or the Department's regulations, there is no need for the Court
to address the remedial issues discussed in this portion of our brief.

   /25/ It is significant that in Bermudez, every member of the
plaintiff class had been deprived, through error, of food stamps to
which they were entitled.  None of the plaintiffs asserted a mere
procedural error.  490 F.2d at 720 n.1.

   /26/ These regulatory provisions for the recoupment of food stamp
overissuances receive statutory recognition in 7 U.S.C. 2022(b), which
governs the means by which state agencies may collect claims against
households.

   /27/ The employee might have been entitled to a hearing even though
he had no property interest in continued employment, because he had a
liberty interest that was infringed by the "stigma" caused by the
presence of derogatory information in his employment file.

   /28/ The Court also held that the students would have an action for
compensatory damages if they could prove "mental and emotional
distress" as a result of the due process violation (435 U.S. at
262-264), and that they would be entitled under 42 U.S.C. 1983 to
"nominal damages" (435 U.S. at 266-267).  In the instant case, the
district court did not purport to award damages for mental or
emotional distress or nominal damages;  nor would such damages be
authorized under law against either the Commonwealth or the federal
government.

   /29/ Significantly, under the Administrative Procedure Act monetary
relief is not available.  5 U.S.C. 702.  Moreover, reviewing courts
are required to take "due account * * * of the rule of prejudicial
error." 5 U.S.C. 706.  Thus, procedural errors are disregarded that
"have no substantial bearing on the ultimate rights of parties."
Market Street Ry. v. Railroad Commission, 324 U.S. 548, 562 (1945).
It is not certain, therefore, that agency action would necessarily be
set aside under the APA where, as here, there is no colorable claim
that the procedural error could have affected the outcome.

   /30/ The courts below did not find that the federal respondent
violated any of plaintiff-respondents' constitutional rights.

   /31/ Any rulemaking would be subject to judicial review under
appropriate provisions of Massachusetts law.  However, the district
court order would apparently entail a standard of review of the
Commonwealth's regulations far more stringent than the traditional
"arbitrary and capricious" standard appropriate to rulemaking
proceedings of this type (see e.g., American Family Life Assurance Co.
v. Commissioner of Insurance, 388 Mass. 468, 478, 446 N.E.2d 1061,
1066-1067 (1983)), and would transfer review of this state rulemaking
from the state to the federal courts.

   /32/ Of course, that the Commonwealth was "on notice of exactly
what information plaintiffs considered essential" (Pl-resp. Br. 34
(emphasis added)) has no bearing on the Commonwealth's good faith
compliance with the operative regulations as they stood at that time.

   /33/ Pennhurst State School & Hospital v. Halderman, No. 81-2101
(Jan. 23, 1984), slip op. 18 n.17, does not suggest that the absence
of bad faith should not be considered (see Pl-resp. Br. 34).  The
Court held only that the absence of bad faith "does not affect whether
an injunction might be issued * * * by a court possessed of
jurisdiction" (emphasis added).