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October 9, 1986


The opinion of the court was delivered by: FULLAM


 This case concerns the availability of declaratory and injunctive relief to enforce 7 U.S.C. § 2020 (e)(9). The statute entitles desperately poor households to expedited issuance of benefits under the Food Stamp Act, 7 U.S.C. §§ 2011 to 29 (as amended). The certified class of plaintiffs comprises Pennsylvania applicants eligible for such expedited issuance. Defendants include officials heading Pennsylvania's Department of Public Welfare (DPW) and the United States Department of Agriculture, Food and Nutrition Service (FNS).

 On the scheduled trial date, plaintiffs and FNS offered a Consent Decree to settle most of their disputes. The federal defendant thus agreed that DPW's program denied plaintiffs' rights: "FNS's investigations of local DPW offices, FNS meetings and conversations with DPW, and the depositions taken of DPW personnel in this litigation have disclosed substantial noncompliance with the requirements of providing expedited issuance of food stamps found at 7 U.S.C. § 2020 (e)(9) and in implementing regulations." Consent Decree para. I. The federal agency has expressly requested this court to issue a remedial order and, under the Consent Decree, promises to monitor DPW's compliance -- including unannounced office visits to DPW's County Assistance Offices (CAOs) which receive applications for benefits, calls to spot-check on information given out at CAOs, and thorough reporting on all DPW procedures used to implement the Food Stamp Act. These procedures being appropriate, I approved the Consent Decree.

 Before trial, DPW did not concede liability to plaintiffs. Neither did the agency concede the invalidity of its regulation to implement expedited issuance, instead arguing that the regulation conformed to FNS rules. This latter issue became complicated when, on the eve of trial, FNS changed the regulations used to implement 7 U.S.C. § 2020 (e)(9). See 7 C.F.R. § 273.2 (i)(3), reprinted and discussed in 51 Fed. Reg. 10764, 10771-74, 10784-85 (March 28, 1986). This new federal regulation makes DPW's regulation invalid, but does not require major changes, and plaintiffs now argue that both rules facially violate the statute.

 To resolve their disputes, the parties submitted numerous papers, including evidence (such as that in filed depositions, interrogatories, and affidavits) and well-crafted briefs (including motions for partial summary judgment).


 On the issue of DPW's actual violations, the first question is whether plaintiffs have standing to obtain further relief. DPW cites Tyler v. Pasqua, 748 F.2d 283, 285-87 (5th Cir. 1984), for the proposition that there is no private right of action to pursue claims that a state improperly administers its food stamp program. The key finding in Tyler was that the Food Stamp Act established a "comprehensive enforcement mechanism,"with fair hearing procedures and federal oversight, precluding that plaintiff's claim. Id. at 287 (citing 7 U.S.C. §§ 2020 (e)(10), (g)). However, even if correct, that decision does not govern the present case. Tyler involved a pro se litigant seeking individual relief, id. at 284 & n.2, whereas this case involves claims of systematic maladministration of a program. The existence of comprehensive remedies for an individual does not necessarily mean that similarly comprehensive remedies exist for a class. Cf. Bowen v. City of New York, 476 U.S. 467, 106 S. Ct. 2022, 2032, 90 L. Ed. 2d 462 (1986).

 In two recent cases involving class actions challenging a state's systematic administration of the Food Stamp Act, the Supreme Court has addressed the merits of plaintiffs' claims without a hint of any problem of standing. Atkins v. Parker, 472 U.S. 115, 105 S. Ct. 2520, 86 L. Ed. 2d 81 (1985); Knebel v. Hein, 429 U.S. 288, 50 L. Ed. 2d 485, 97 S. Ct. 549 (1977). Even if the Food Stamp Act does not itself create a private right of action, plaintiffs have standing under 42 U.S.C. § 1983. See Maine v. Thiboutot, 448 U.S. 1, 65 L. Ed. 2d 555, 100 S. Ct. 2502 (1980); id. at 36 (Powell, J., dissenting). Defendants correctly observe that "when the remedial devices in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983." Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 20, 69 L. Ed. 2d 435, 101 S. Ct. 2615 (1981). In Sea Clammers, however, the Court considered a statute "including . . . two citizen suit provisions," id., reflecting congressional consideration of how much of a private remedy to give. My conclusion that no comparable enforcement scheme exists under this statute, cf., e.g., Alexander v. Polk, 750 F.2d 250, 259 (3d Cir. 1984) (finding a private right of action to enforce rights under the Supplemental Food Program for Women, Infants, and Children), is buttressed by a House Committee report in 1977 that "administrative remedies against the state . . . should not be construed as abrogating in any way private causes of action against states for failure to comply with Federal statutory or regulatory requirements." H. Rep. No. 464, 95th Cong., at 398, reprinted in 1977 U.S. Code Cong. & Ad. News 1971, 2327. Accordingly, I conclude that plaintiffs have the requisite standing.

 DPW also incorrectly suggests that this court's remedial power is limited by FNS's agreement to begin intensive monitoring. The Consent Decree provides none of the injunctive relief requested by plaintiffs. In fact, FNS lacks power to enjoin improper state action, but can only notify the offending state and refer the matter to the Attorney General. See 7 U.S.C. § 2020(g). DPW has had ample notice that FNS considers the State agency's practices contrary to federal law and, given plaintiffs' standing, there is no reason to delay equitable relief by waiting for the Attorney General to sue. FNS is in accord with this conclusion.

 As a final defense, DPW suggests that the evidence fails to prove that DPW affirmatively deprived plaintiffs of their rights. See, e.g., DPW's Proposed Findings of Fact paras. 24-30; DPW's Proposed Conclusions of Law paras. 39-40. On the contrary, I conclude that DPW has indeed failed to implement the federal law requiring expedited issuance of food stamps. The undisputed record provides over 400 examples of the State agency's dereliction of duty.

 It would be unwieldy and pointless to detail each of these examples here. I will cite them, using the paragraph numbers in plaintiff's submission, to summarize DPW violations.

 The Food Stamp Act and federal regulations impose a fundamental requirement that DPW allow and encourage all prospective applicants to apply for benefits on the same day that they first enter a food stamp office during business hours. See 7 C.F.R. § 273.2 (c) (1, 2); accord Consent Decree para. II (a-e). However, certain CAOs set a maximum number of applications that will be accepted for processing in any day, turning others away: Elk (9); Forrest (10); Bedford (20); Westmoreland (12, 24, or 44, depending on the district office); Somerset (10, in the main office); Sullivan (4); Bradford (16); Snyder (4, and generally only by appointment); Tioga (8, except emergencies); Wyoming (9, except emergencies); Lebanon (22); Carbon (6, and only 15 for all benefits programs). paras. 82, 85-86, 88-95, 98. Other CAOs set cut-off times after which they will not accept applications: Allegheny's CAO is among the worst of these, with the Eastern District office having posted a sign in the reception area explaining that, usually, no applications will be received after 9 a.m. and that agents will not guarantee to see prospective applicants who arrive after 8:30 a.m., paras. 50-63; Schuylkill's CAO cuts applications off at 2 p.m., para. 76; and similar cut-off times (and related violations) were found in Philadelphia's CAO, paras. 65-66, 77-78, 83-84, and Dauphin's CAO, paras. 79-81. In the Wilkes-Barre District of Luzerne's CAO, prospective applicants are given application forms and told to take them home, fill them out, and mail them in, paras. 67-70, as is often done in Lycoming's CAO, paras. 71-72, instead of being advised that the form should be completed immediately. Violations also were found in the following CAOs: Washington, Clearfield, Jefferson, Clinton, Centre, Franklin, and Cumberland. Paras. 64, 73-75, 87, 96-97. These violations not only deny applicants' general right to food stamps, they also impair plaintiffs' particular right to expedited issuance.

 Plaintiffs have a right to expedited issuance. 7 U.S.C. § 2020 (e)(9); 7 C.F.R. § 273.2(a); accord Consent Decree para. II (f). However, DPW officials in some CAOs affirm that their offices virtually completely fail to effectuate this right. See paras. 30-32 (Lehigh District of Philadelphia), paras. 33-42 (several districts of Allegheny); para. 43 (Wilkes-Barre District of Luzerne); paras. 44-46 (Lycoming); para. 47 (Jefferson); para. 48 (Schuylkill). Plaintiffs conclude, and DPW does not deny, that "more than one-third of the county and district offices whose staff was deposed openly admitted a general failure to provide expedited issuance." Para. 49. These admissions are confirmed by statistics, which also show illegalities in DPW offices with less forthright agents; nationwide data collected for FNS reveals that between 30% and 50% of all applicants for food stamps deserve expedited issuance, para. 262; see also Stipulation Between Plaintiffs and Defendant Richard E. Lyng (April 7, 1986), whereas many Pennsylvania CAOs grant expedited issuance far less often, see paras. 230-261 (between 0% and 2% of applicants received expedited issuance in 6 CAOs and in 11 district offices of 6 other CAOs; in one other district office between 3% and 8% of applicants received expedited issuance). No further analysis, statistical or otherwise, is needed to prove inexcusable noncompliance. Cf. Hess v. Hughes, 500 F. Supp. 1054, 1059-61 (D. Md. 1980). But there is more.

 DPW offices are obliged to review all food stamp applications, on the day of submission, to see if the household qualifies for expedited issuance, which must be provided without discouragement and not merely made available or "offered" to eligible people. See 7 C.F.R. § 273.2 (a, i); accord Consent Decree para. II (l, n, s, v). However, certain CAOs simply refuse to read over all applications when submitted, with some offices taking one to two weeks to screen the forms. See paras. 101-138 (violations found in Allegheny, Philadelphia, Delaware, Northumberland, Chester, Washington, Luzerne, Lycoming, Jefferson, Schuylkill, Dauphin, and Wayne CAOs). Further, certain CAOs effectively deprive eligible applicants of expedited issuance by limiting screening to cover only general eligibility requirements unless the applicant takes initiative by specifically requesting expedited issuance or explaining the household's crisis state. See paras. 139, 143-45, 147-48, 150-51, 153-56, 158, 370 (violations found in Allegheny, Northumberland, Chester, Washington, Carbon, Luzerne, Lycoming, Jefferson, and Schuylkill CAOs). In the Hill and Tioga Districts of Philadelphia's CAO, DPW agents only "offer" expedited issuance of food stamps to eligible applicants, with many of these offers being declined, paras. 141-42, 159-60, apparently because DPW improperly penalizes recipients of expedited issuance by delaying cash assistance benefits, paras. 162-64. Thus, DPW offices have shirked their duty to assess each applicant's entitlement to expedited issuance, and to provide this benefit when deserved.

 Notwithstanding DPW's obligation to provide informed agents to process food stamp applications, see 7 C.F.R. §§ 272.4(d), 273.2(i); accord Consent Decree para. II (m, q, r), even when they try to evaluate applicants' entitlement to expedited issuance some DPW offices apply incorrect standards. The statute and federal regulations make clear that, for the purposes of this program, benefits may not be denied for lack of verification of information in an application except for lacking verification of the applicant's identity, and not even for lacking verification of identity unless the agency attempts verification by collateral contact. 7 U.S.C. § 2020 (e)(9); 7 C.F.R. § 273.2 (i) (4) (i, ii); see also 7 C.F.R. § 273.2 (c, f, i) (protection for migrant workers). Accord Consent Decree para. II (h-k, o). However, before approving expedited issuance of food stamps, certain CAOs require verification of: whether an applicant has applied for child support, paras. 166, 169, 173, 176, 184, has registered for work, para. 167, has actually separated from a spouse, para. 181, or has financial resources, para. 186; what is the applicant's citizenship, paras. 170, 190, 193-94, income, paras. 171, 175, 186-87, 197, residence, paras. 172, 174-5, 177, 183, 187-88, 193-94, 196-97, or social security number, paras. 177, 183, 188, 196; how a last job was lost by the applicant, para. 180, 185, 190, 193, and what is the value of the applicant's car, para. 183. (In at least one case, DPW's executive deputy secretary has approved such an erroneous requirement for verification. paras. 303-305.) Further, some DPW offices require verification of all "questionable" information, paras. 179, 186, and unclear factors of eligibility such as "past management", para. 192; others generally delay the process to verify some or all of the factors normally relevant to determine eligibility for food stamps, paras. 168, 182-83, 189. Finally, some offices fail to make required collateral contacts where needed to verify identification. paras. 178, 191, 195. Moreover, the statute and regulations define clear eligibility standards and limit the type of information that may be considered in evaluating applications. 7 U.S.C. § 2020 (e)(9); 7 C.F.R. § 273.2 (f, i) accord Consent Decree para. II (f-h, j). However, certain CAOs apply the wrong income standards, paras. 202-03, 208, 221, 224-26, use improper time standards, taking too long to act, paras. 209, 353, 355-56, 363, 365, 358, 368-69, 371-72, 374-75, 379-80, 384, 387-89, 391-92, 396, 399-400, 407, or incorrectly define migrant status, paras. 210-11. ...

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