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January 18, 1972

Thomasena TINDALL, individually and on behalf of her household; Barbara C. Ankney, individually and on behalf of her household and on behalf of all others similarly situated, Plaintiffs,
Clifford M. HARDIN, individually and in his capacity as Secretary of the United States Department of Agriculture, et al., Defendants

Dumbauld, District Judge.

The opinion of the court was delivered by: DUMBAULD

Legal scholars have often observed, that both in the Roman law and common law systems, the remedy or specific type of action historically came first. Not until later did legal philosophers analyze and classify the types of substantive rights recognized by the law, and endeavor to devise appropriate remedies to enforce them. In the more advanced and sophisticated stage of legal development, with primary emphasis upon the substantive rights, the maxim ubi jus ibi remedium was formulated. *fn1"

 Adherence to this maxim has often resulted in judges finding themselves wrestling with matters which more fittingly ought to be handled in other forums. Judges have been castigated for assuming the role of a super-legislature", *fn2" "super draft boards" *fn3" or a "super-legal-aid bureau" *fn4" or a "super board of education." *fn5" One thinks also of the role of "super constitutional convention" assumed in redistricting under the "one-man one-vote" principle, *fn6" and of our colleague in the Eastern District Judge Fullam's valiant service as "super railroad executive" in connection with the Penn Central bankruptcy. *fn7"

 In the case at bar we essay the task of "super relief administrator" in order to give effect to the maxim ubi jus ibi remedium in connection with a computer breakdown in the issuance of food stamps.

 The food stamp program, the testimony in the case at bar discloses, was first put into effect in the pioneer area of Fayette County, Pennsylvania. *fn8" The program, authorized by the Act of August 31, 1964, as amended, *fn9" was designed to distribute agricultural surplus items and other domestically produced food products, through commercial channels (replacing previous programs of direct distribution in kind through government agencies).

 The plan undertook to better the diet of low-income beneficiaries by enabling them to purchase a better diet then they had been enjoying, rather than to help them continue the same diet at less cost to themselves.

 In furtherance of this statutory scheme, the Secretary of Agriculture established uniform national standards of eligibility, pursuant to which the State agency of participating States issues food stamp coupons.

 Coupon allotments shall be in such amount of face value as the Secretary finds from time to time to be the cost of a nutritionally adequate diet. However, the beneficiaries pay less than the face value for coupons. The amount they pay is to represent "a reasonable investment" on their part, but in no event more than 30 per cent of the household's income. The amount paid is governed by a sliding scale, dependent on the beneficiaries' income bracket.

 The coupons are accepted at face value by grocery concerns approved to participate in the plan, and are eventually redeemed at face value by the federal government. *fn10"

 In other words, the beneficiaries receive coupons at a discount. It is as if the government instituted a plan to enable school children from impoverished areas to visit the National Capital, Independence Hall, the Alamo, Valley Forge, and other patriotic sites which every citizen should have an opportunity to visit, and issued through the State school system government transportation requests (at a discount varying in proportion with the beneficiary's lack of income) which the airlines and bus companies would accept from the passengers and present to the government for payment in accordance with the applicable standard rates and tariffs.

 Although the Act indicates that the State agency shall issue the coupons [ 7 U.S.C. § 2019(b)], the testimony shows that the States in fact issue cards designated as ATP (authorization to purchase), which are then presented to banks in exchange for the coupons to be used in the grocery stores. The testimony of James H. Kocher, in charge of administering the program, points out that the program is voluntary in the sense that each month many ATPs issued are not exchanged for stamps especially by persons in higher income brackets where the discount from face value of the coupons obtainable is smaller.

 Regulations provide that duplicate ATPs may be issued within the month of original issue in case of loss in the mails or other failure of the beneficiaries to receive their allotment.

 Mr. Kocher is of the view that this one month period is adequate and reasonable, and that if delayed issuance of ATPs or purchase of coupons were permitted, it would encourage laxity on the part of State agencies in handling the issue and reissue of authorizations to purchase coupons.

 The administrator also points out that to issue nunc pro tunc in a lump sum the amount of coupons in arrears would encourage illegal disposition of the coupons in the black market, as a glut of groceries would be purchasable in excess of what the ...

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