is illogical for plaintiffs to maintain that they would have prevailed on the priority issue at an administrative hearing when this court has determined that instituting the priority program was reasonable. Alexander at 897.
Plaintiffs' position is not without logic. The administrative hearing would have been provided, according to the parties' interpretation of the regulations, by the state agency and the Commonwealth had previously indicated its disagreement with the City's decision to implement the priority program. See Exhibit P-1, D-23. Thus, argue plaintiffs, with the Commonwealth as the decisionmaker, they would have prevailed. I will, for the sake of argument, assume that plaintiffs are correct and that the Commonwealth would have decided that the City was wrong in instituting the priority program. It is possible that, based on such an administrative decision, the City would have reinstated removed recipients. This is an unlikely scenario, however, because a similar situation actually existed just before and during the early part of this litigation. The Commonwealth had considered the City's decision to implement the priority program, disapproved it, attempted to reassure the City that it would suffer no fiscal liability for reinstating removed recipients, See Exhibit P-1, and ordered the City to cease the priority program. The City refused to comply and the Commonwealth was either powerless to enforce, or unconcerned with enforcing, compliance. There is no convincing reason to believe the City would have acted differently after a Commonwealth administrative hearing. Such a hearing would, in all probability have produced nothing more than has existed throughout the entire course of this litigation -- a conflict between the City and the Commonwealth about the appropriateness of implementing the priority program. Thus, while plaintiffs may have been said to have prevailed at the administrative hearing, it is unlikely that the City would have reinstated them without a guarantee by the Commonwealth to reimburse the City for all cost overruns associated with abandoning the priority program. This is the guarantee the City continually sought and the Commonwealth continually refused to provide.
There are, of course, other possible outcomes of such an administrative hearing: the Commonwealth might have provided contractual guarantees to the City to protect it from fiscal liability; the Commonwealth might have improved its accounting system; the City might have eliminated the problems with its head count tally and maintained its manual monitoring system; or the City and the Commonwealth might have agreed on a method for reconciling the differences in their accounting systems so that they would both be making decisions based on the same facts. Any of these outcomes would have been beneficial to plaintiffs. However, because I have no reason to believe that any of these alternatives was likely to have occurred, it would be inappropriate to fashion relief on any such speculative outcome.
What is not speculative, however, is the provision of the WIC regulations, 7 C.F.R. § 246.24(b), which required that benefits be paid during the hearing process. According to this section, the hearing process had to be completed within 45 days from the request for a hearing. The plaintiffs have failed to provide any evidence of the time in which the Commonwealth would have rendered a decision. The City provided benefits for 30 days after its oral notice of termination. I cannot assume that the Commonwealth would have needed more than that 30 days to reach a decision for two reasons. First it would be too speculative to make such an assumption in light of the plaintiffs' failure to carry their burden of proof. Secondly, because the Commonwealth was aware of the City's decision to implement the priority program as early as mid-December, 1977, Exhibit D-6, it is more reasonable to assume that a decision could have been rendered promptly.
Because no actual damages have been proved, I hold that plaintiffs class will recover only nominal damages in the amount of one dollar.
I have held that Leon Truitt was incorrectly removed from the program in April 1978. Had Leon been provided with due process or the statutory notice and hearing, this obvious error would have been identified and corrected. Leon is, therefore, entitled to actual damages for his injury. Unfortunately, plaintiff has not provided any evidence of the measure of Leon's damages, but argued instead that WIC benefits are fungible with cash and, because Leon did not receive benefits for five months, he is entitled to the equivalent in dollars. City defendants argue in opposition that Leon was deprived of nutritional sustenance and the appropriate award is the resumption of benefits. Because of the difficulties with the City defendants' approach, which are discussed later in this section, it is impossible to provide in-kind benefits to Leon. I must then determine the value of Leon's WIC benefit. Carey v. Piphus, 435 U.S. 247, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978) directs that damages for constitutional violations be determined according to tort principles. To the extent possible, the court is to be guided by the common law tort most analogous to the constitutional violation. Id. at 258. The deprivation of due process and the statutory violation which led to the withholding of Leon's benefits is similar to common law conversion, for which, according to Pennsylvania law, the measure of damages is the market value of the goods at the time and place of conversion. Knuth, et al. v. Erie-Crawford Dairy Cooperative Association, et al., 463 F.2d 470, 478 (3d Cir. 1972), cert. denied, 410 U.S. 913, 35 L. Ed. 2d 278, 93 S. Ct. 966 (1973). The most reasonable measure of that value is the amount the state paid for Leon's vouchers each month. Leon is entitled to the value of his monthly benefits
from the date of his removal, April 1978, until he reached his fifth birthday in September 1978. No evidence has been provided that Leon suffered any further damage from his precipitous removal.
No evidence has been provided for any of the other named plaintiffs that would support a finding that they would have prevailed if they had been provided with notice and hearing. See the discussion in Alexander at 894-5.
I have also held that Andrea Carey was deprived of her due process rights and the statutory process required by 7 C.F.R. § 246.10(c)(5)(ii). Ms. Carey does not claim damages for deprivation of benefits for her daughter, Leslie Bonita Rex, because Leslie was reinstated within the same month in which she was removed and, although some benefits were delayed, she did not miss receiving any vouchers. Ms. Carey's claim is for the emotional distress caused by the City's denying her an opportunity to present her side of the story. While I find that plaintiff experienced justifiable displeasure with the City's actions, I do not find that her distress rose to a compensable level.
Ms. Carey is, therefore, entitled only to nominal damages.
Plaintiffs also seek punitive damages. The City defendants correctly point out that such relief against the City is barred. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 69 L. Ed. 2d 616, 101 S. Ct. 2748 (1981). Punitive damages, however, are available against the individual defendants. Id. at 269. In a recent decision, Smith v. Wade, 461 U.S. 30, 103 S. Ct. 1625, 75 L. Ed. 2d 632, 51 U.S.L.W. 4407 (1983), the Supreme Court defined the standard to be used for awarding punitive damages in § 1983 cases. If a defendant shows a "reckless or callous indifference to the federally protected rights of others," punitive damages may be awarded. Id. at 4414. There has been no evidence that the actions of any defendant demonstrates such recklessness or callousness. Punitive damages will therefore be denied.
The City asserts that the assessment of any damages against individual defendants
is barred by qualified immunity. While there is no qualified immunity for the City or for municipal officials acting in their official capacity, there is a qualified immunity for these officials in their personal capacity. Owen v. City of Independence, Missouri, 445 U.S. 622, 657, 63 L. Ed. 2d 673, 100 S. Ct. 1398, reh'g denied, 446 U.S. 993, 64 L. Ed. 2d 850, 100 S. Ct. 2979 (1980). In Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982), the Supreme Court modified the test to be used in determining if an official's actions are immune from suit under the qualified immunity doctrine. Prior to that case, defendants' conduct was measured against both an "objective" and a "subjective" standard. Harlow at 2737. The test now is whether defendants' conduct violated "clearly established" statutory or constitutional rights of which a reasonable person would have been aware. Id. at 2738-39.
As well as this court has been able to ascertain, the issue of entitlement under the WIC program and the interpretation of the WIC regulation's notice requirements relating to removals under the priority program were issues of first impression in the instant litigation. In addition, the length of this opinion also supports the conclusion that the rights involved were not "clearly established." I therefore hold that all individual City defendants are protected by qualified immunity from liability in their personal capacities for denial of due process and statutory notice to class members.
Andrea Carey's situation is different. The right to a pre-removal hearing in cases of alleged program abuse was clearly spelled out in the regulations, 7 C.F.R. § 246.10(c)(5)(ii). Mr. Dickman's original letter to Ms. Carey informing her of her removal from the WIC program, offered her the opportunity to discuss her situation with him. Because of the Commonwealth's failure to provide hearing procedures that Mr. Dickman could have used, his action may have been an attempt to offer some process in this case. In addition, very shortly after Ms. Carey's attorney informed Mr. Dickman of the procedural defects in the handling of Ms. Carey's case, her daughter's benefits were reinstated and she was offered the opportunity for a fair hearing, Exhibit S-28. Defendant Jack Burkhardt became involved in this incident when he sent a letter affirming Mr. Dickman's original actions to Andrea Carey's attorney. Exhibit S-27. The day after Mr. Burkhardt sent his letter, however, Mr. Dickman sent his letter to Ms. Carey informing her of her daughter's reinstatement. Under these circumstances, it would be unreasonable to abrogate Mr. Dickman's or Mr. Burkhardt's "good faith" immunity.
There is one last issue to be addressed. I have determined the amount of damages to which plaintiffs are entitled, but not the means of providing relief. The City argues that the purpose of the WIC program is to provide nutritional assistance, therefore, providing plaintiffs with monetary compensation at this point in time would not achieve the statutory purpose. In addition, the City argues that since it no longer administers the WIC program, it can provide no compensation in the form of vouchers or reinstatement. Lastly, the City argues that the food benefits of which plaintiffs were deprived were paid for by federal funds and exacting monetary damages from the City at this point would be improper.
The plaintiffs maintain, simply, that since a violation has been found, a remedy must be provided. They argue that there is nothing in the WIC statute which would block monetary payments. To support the argument that they should be compensated for the loss of nutritional benefits, plaintiffs rely on an analogy to cases which involved the improper deprivation of food stamps.
In these cases, because the courts were concerned about the potential for abuse if extra stamps were provided as damage payments, i.e., the sale of the stamps, they fashioned the remedy of "forward adjustment," which reduced or eliminated the cost of future stamps to plaintiffs until they had received compensation for their injuries. While a remedy of this type would not be appropriate here,
the rationale supporting the court's decision to compensate plaintiffs in Carter v. Butz, 479 F.2d 1084, 1088 (3d Cir. 1973), cert. denied, 414 U.S. 1094, 38 L. Ed. 2d 552, 94 S. Ct. 727 (1973), is applicable. The court held that while plaintiffs' past food consumption could not be increased to compensate for the nutritional loss they had suffered, they could be compensated for the fiscal loss that accompanied the denial of stamps. The court found it likely that plaintiffs would have used their own money which would otherwise have been allocated for other purposes to fill the nutritional void. This fiscal deprivation was appropriately compensated by money damages. Applying the same logic, I find no reason to withhold monetary damages.
City defendants, relying on Carter v. Butz, argue that if monetary damages are to be awarded for benefits any plaintiffs should have received, the federal government should pay those damages. They argue that federal money would have paid those benefits originally and that during the relevant period, the Commonwealth refunded $1,663,216 in unspent WIC allocations to the federal government. Stipulation 43. In Carter, the court held that the federal government had to reimburse recipients for food stamp benefits incorrectly withheld because of a state error. There are however two significant differences between the situation in that case and the one here. First, plaintiffs in Carter were currently receiving food stamps from the federal government and the forward adjustment remedy could be easily applied. Second, and more important, the federal government was a defendant in that case. The absence of these factors in the instant case make a remedy against the federal government untenable.
The City defendants' position is somewhat anomalous. They are not solely responsible for the injury to plaintiffs, but because the Eleventh Amendment bars recovery against their co-actors, the Commonwealth defendants, they will bear the full, albeit de minimus, cost of compensating plaintiffs. Had the City continued to pay benefits in 1978, the funds would have been provided by the federal government. The money must now be provided by the City. We must keep in mind, however, that the City is most directly responsible for the harm to plaintiffs. Because it was the City defendants who decided what process to provide to those removed, under the circumstances, there is no injustice in holding the City defendants liable for the harm caused by their actions.
This 29th day of September, 1983, it is
ORDERED that Judgment is entered in favor of all plaintiffs and against defendants, the Department of Health of the City of Philadelphia, Pearl Pitt, M.D., Christine Kniszley, M.D., Barry Dickman, and Jack Burkhardt, in their official capacities in the following amounts:
Plaintiff, Leon Truitt -- Compensatory damages of $87.75;
All Class Plaintiffs -- Nominal damages of 1.00;
Plaintiff, Andrea Carey -- Nominal damages of 1.00;
for Total Damages of $89.75
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