Ashley v. Butz, Civ. A. No. 75-0333-R.

Citation463 F. Supp. 165
Decision Date23 February 1976
Docket NumberCiv. A. No. 75-0333-R.
PartiesNancy ASHLEY et al. v. Earl BUTZ et al.
CourtU.S. District Court — Eastern District of Virginia

Gerald G. Lutkenhaus, Neighborhood Legal Aid Society, Inc., Richmond, Va., for plaintiffs.

Charles L. Beard, Asst. U. S. Atty., Richmond, Va., Stuart H. Dunn, Deputy Atty. Gen. of Virginia, Richmond, Va., for defendants.

MEMORANDUM

WARRINER, District Judge.

This is an action for the declaratory and injunctive relief, brought by Nancy Ashley on behalf of herself and all other persons similarly situated. Plaintiff seeks relief in the form of a declaration of invalidity and an injunction to prevent enforcement of one federal regulation, 7 C.F.R. § 271.3(c)(2)(iii)(f) and one State regulation, § 310.4(e) (Virginia Department of Welfare Food Stamp Handbook). The cause of action arises under the Federal Food Stamp Act of 1964, as amended, 7 U.S.C. §§ 2011-2026, the Fifth and Fourteenth Amendments, and 42 U.S.C. § 1983. Jurisdiction is alleged pursuant to 28 U.S.C. §§ 1331, 1337, 1343(3), 1361, and, with regard to declaratory relief, 28 U.S.C. §§ 2201 and 2202.

The basic facts giving rise to this controversy have been stipulated by the parties. The named plaintiff, Nancy Ashley, is a divorced woman, 29 years of age, whose household includes two minor children, ages 5 and 8. Plaintiff and her family have been receiving food stamps since April of 1972. On 20 July 1973 plaintiff was divorced from her husband and received custody of their two children. Since the divorce, plaintiff and her children have existed on child support and Aid to Dependent Children and have continued to receive food stamps.

In August, 1974, plaintiff and her children moved to Henrico County, Virginia, and her children began to receive their food stamps from the Henrico County Welfare Department. In September, 1974, plaintiff enrolled as a student at the Virginia Commonwealth University in Richmond where she intended to earn a degree which would qualify her to do social work. The Virginia Department of Vocational Rehabilitation thereafter awarded the plaintiff a $100.00 per month transportation grant for necessary transportation expenses she would incur when commuting to and from the University. During the period in which plaintiff received the grant it was expended solely and completely for school transportation. After being awarded the grant, plaintiff immediately notified the Henrico County food stamp officials of that fact. Thereafter, in October of 1974, the Henrico County food stamp officials informed plaintiff her food purchase requirement would be increased from $40.00 to $82.00 due to the fact that plaintiff's transportation grant was considered as additional income to plaintiff.

On 4 November 1974, plaintiff's food stamp file was closed at her own request. From 4 November 1974 until 7 February 1975, plaintiff and her two children did not receive food stamps. On 7 February 1975, after filing an affidavit seeking re-certification as a food stamp recipient, plaintiff was again informed by the Henrico County officials that her transportation grant would have to be counted as income in the computation of her food stamp purchase requirement. On 10 February 1975 plaintiff's application was approved and she was assigned a purchase price of $76.00 to buy $128.00 worth of food stamps. On 13 February 1975 plaintiff appealed the decision of the Henrico County Welfare Department. The hearing officer affirmed the decision on 20 May 1975. The officer based his decision on an interpretation of Virginia Food Stamp Manual § 1920.1 He also noted that effective 1 January 1975, C.F.R. § 271.3(c)(1)(iii)(f) specifically excludes deductions for school transportation expenses. Deductions under that section are allowed for only:

(f) Tuition and mandatory fees assessed by educational institutions (no deductions shall be made for any other education expenses such as but not limited to the expense of books, school supplies, meals at school, and transportation. 7 C.F.R., Section 271.3(c)(1)(iii)(f).

The hearing officer further pointed out that as of 1 April 1975, the Virginia Food Stamp Manual had incorporated the above quoted section which specifically excluded deductions for school transportation, thus making the exclusion part of the Virginia regulations.2

In July, 1975, the plaintiff filed suit in this Court challenging the aforesaid regulations and the decision of the hearing officer. Plaintiff withdrew from school in the last week of October, 1975, and therefore did not receive a transportation grant payment in November or thereafter. According to the undisputed affidavit of Deborah Jordon, a case worker for the Henrico County Department of Public Welfare, the plaintiff Nancy Ashley asked on 3 December 1975 to be withdrawn from the food stamp and public assistance programs effective 1 January 1976, since she had obtained employment.

The initial question presented to the Court is the question of whether or not under the stipulated facts the action has now become moot. Apparently plaintiff does not dispute the fact that the case should be treated as moot under ordinary circumstances. Plaintiff points to two factors which obviate mootness. First, plaintiff says that the action is not moot since it was filed as a class action. Second, plaintiff says the action is not moot because plaintiff is entitled to "retroactive benefits" if she prevails.

No class has been certified in this case. Its posture is similar to that addressed by the Supreme Court in Board of School Commissioners of City of Indianapolis v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975). In Jacobs certain children complained of regulations imposed upon them as high school students by the School Commissioners of the City of Indianapolis. They filed their complaint as a class action but no class action was certified by the District Court. By the time the matter reached the Supreme Court all of the children had graduated from high school. The Supreme Court held:

The case is . . . moot unless it was duly certified as a class action pursuant to Fed.Rule Civ.Proc. 23, a controversy still exists between petitioners and the present members of the class, and the issue in controversy is such that it is capable of repetition yet evading review. 420 U.S. at 129, 95 S.Ct. at 850.

The plaintiff, by going off the welfare rolls, no longer has a case or controversy between herself and the defendants. She says, however, that if the Court were now to certify the action as a class action, the certification would relate back to the time of filing the complaint and new life would be pumped into the action since, she says, there are others similarly situated.

Whether or not there is a relation back principle, see McCleary v. Realty Industries, Inc., 405 F.Supp. 128 (E.D.Va. 1975); Banks v. Hills, Civil No. 75-0492-R (E.D.Va., 17 December 1975), such a doctrine would not avail plaintiff in this case to permit her to maintain her action. There are cases in which a plaintiff, no longer having a case or controversy because of mootness, may nevertheless maintain an action when it has been properly certified as a class action. Such a case was Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). This non-mooting doctrine as set forth in Sosna is extremely limited and is intended to serve the very practical problem of enabling Courts to review controversies which through the inexorable passage of time would otherwise evade review. After stating the doctrine in Sosna, Mr. Justice Rehnquist clearly...

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