Cleary v. Commission of Public Welfare

• Decision Date: 27 November 1985
• Citation: 21 Mass.App.Ct. 140,485 N.E.2d 955
• Parties: Barbara Ann CLEARY v. COMMISSIONER OF PUBLIC WELFARE et al. 1
• Court: Appeals Court of Massachusetts

Page 955

485 N.E.2d 955

21 Mass.App.Ct. 140

Barbara Ann CLEARY v. COMMISSIONER OF PUBLIC WELFARE et al. ¹

Appeals Court of Massachusetts,

Hampshire.

Argued Jan. 13, 1984.

Decided Nov. 27, 1985.

Jim Hammerschmith for Joanne Weir, intervener.

William L. Pardee, Asst. Atty. Gen., for defendants.

Before ARMSTRONG, DREBEN and SMITH, JJ. ARMSTRONG, Justice.

The plaintiff, who had applied for food stamps in September, 1974, had appealed in January, 1975, from the failure of the Department of Public Welfare to take action on her application, and had waited for more than four months for the Department to schedule a hearing on her appeal, commenced this action on May 2, 1975, claiming a denial of her rights under Federal and State law to a speedy disposition of her appeal. She sought certification as representative of a class of persons similarly situated. The class was defined in her complaint as "those [f]ood [s]tamp applicants and recipients who have filed requests for administrative appeals on [f]ood [s]tamp issues and either have not had hearings scheduled or have not received final decisions on their appeals within sixty days after filing." On May 12, 1975, a judge of the Superior Court certified the action as a class action without further definition of the class. ² On September 15, 1980, after a trial based primarily on statistical records produced by the department, another judge found and ruled that the department was in substantial compliance with the Food Stamp law and the Federal and State regulations pursuant thereto and denied all relief. Judgment was entered the same day, but the plaintiff, within ten days, filed a motion to amend the judgment on several grounds. ³ At the same time the plaintiff filed a motion for an award of attorney's fees pursuant to 42 U.S.C. § 1988 (1976). The department filed an opposition to those motions, but they were not marked for hearing for several months.

On February 2, 1981, with these motions still pending, one Joanne Weir filed a motion to intervene in the action coupled with an "intervenor's complaint." The latter, as supplemented by her affidavit filed the same day, alleged that Weir had been a food stamp recipient since 1974; that her food stamp benefits had been terminated by the department some time in 1980; that on August 18, 1980, she had filed a fair hearing request; that a hearing had been originally scheduled for September 4, 1980, and rescheduled for September 29, 1980, and again for October 28, 1980, but had to be postponed each time because her legal services attorney had scheduling conflicts; that a hearing finally took place on November 12, 1980, at which "the Northampton welfare office agreed to reinstate [her] family's food stamp benefits effective as of September 1, 1980," but contested liability for June, July and August; and that the decision of the appeals referee was dated December 30, 1980, and received January 2, 1981. (The decision ruled in Weir's favor for June and July and in the department's favor for August.) The complaint went on to state that Weir had received no notice of implementation until January 16, 1981, and that the back food stamps owed her would be paid only in monthly installments which would commence around February 14, 1981, and end in May, 1981.

Weir, in her complaint, also sought certification as representative of a class defined as "those [f]ood [s]tamp applicants and recipients who have filed requests for administrative appeals on [f]ood [s]tamp issues and either have not had hearings scheduled or have not received final decisions on their appeals or have not had those decisions implemented within the time limits set out in the applicable state and federal regulations." The intervention motion stated that Weir's purpose was "to represent her own interests and those of the class in seeking amendment of, and, if deemed necessary, appealing the judgment which the court has entered against the class in this action."

The department opposed intervention by Weir, and on July 20, 1981, the judge denied both the plaintiff's motion to amend the judgment and the motion by Weir to intervene. No appeal was claimed by the plaintiff, who was still the designated representative of the plaintiff class. Weir filed a timely notice of appeal on September 18, 1981. See Mass.R.A.P. 4(a), 378 Mass. 928 (1979) (sixty-day appeal period where the Commonwealth or an officer or agency thereof is a party).

On October 6 and November 16, 1981, the plaintiff filed discovery motions aimed at establishing that, despite having failed to obtain favorable action from the court, the class had nevertheless "prevailed" for purposes of the motion for attorneys' fees under § 1988 by virtue of having prodded the department into reforming and speeding up its hearing and decision-making procedures in food-stamp appeals. The motions for discovery were effectively denied December 4, 1981. The motion for attorney's fees, never marked for hearing, was denied a year later, on December 23, 1982, "to complete [the] record." ⁴ On February 22, 1983 (the previous day having been a holiday), Weir filed a timely notice of appeal from the orders denying discovery and attorney's fees. ⁵

The plaintiff did not appeal, and the department argues that no issue is properly before us on Weir's appeals other than the propriety of the order denying her motion to intervene. As the only appeals before us are Weir's, we begin by considering that contention.

We sketch the theme of the litigation before Weir filed her motion. The Federal Food Stamp Act, both as it read in 1975 when this action was commenced, ⁶ and as it was amended in 1977, ⁷ required a participating State to make provision (in its State plan) "for the granting of a fair hearing and a prompt determination thereafter to any household aggrieved by the action of a State agency under any provision of its plan of operation as it affects the participation of such household in the food stamp program." A regulation promulgated by the Secretary of Agriculture in 1975 required the administering State agency to take "... prompt, definitive, and final administrative action within sixty days of [any request for a hearing]." 7 C.F.R. § 271.1(o)(9)(ii) (1976). That regulation did not make clear what was encompassed by the words "final administrative action," and the plaintiff's complaint, as originally drafted, was directed at the department's failure to render a decision within sixty days of the request for a hearing. In April, 1978, the plaintiff amended her complaint to allege that the department's duty under the Federal regulation was not merely to render a decision but to implement that decision within the specified sixty-day period. ⁸

In October, 1978, the Federal regulations were revised to deal explicitly with time limits for both decision and implementation. In a system such as Massachusetts has, where the initial hearing is given at the State (rather than local) level, the regulations called for a maximum of sixty days from request for hearing to notification of decision, with an additional ten-day period for implementation. 7 C.F.R. § 273.15(c) (1979). ⁹ The Federally mandated time standards being thus clarified, the question remained whether, and to what extent, the department was not in compliance.

Trial began in late December, 1979, and concentrated on four periods of time for which the department had attempted to amass comprehensive statistics: March, 1974, through September, 1975; November, 1976, through December, 1977; October, 1978, through March, 1979; and the month of October, 1979. Despite the voluminous statistics, the picture that emerged was unclear. There were many complicating factors. An example was postponements. In large numbers of cases the applicant for the fair hearing either sought a postponement or didn't show up at the time of the hearing. This would necessitate a rescheduling. The Federal regulations allowed postponements of up to thirty days and extended the times for decision and implementation by the length of the delay caused by a postponement sought by the applicant. ¹⁰ The statistical records did not adequately depict the timeliness of decisions under the extended time standards in postponed cases. The judge seems to have treated postponed cases as instances of compliance with the time standards, thus arriving systematically at higher overall rates of compliance then the plaintiff felt to be justified. Other complaints involved the statistical handling of withdrawn or abandoned appeals and whether it was proper, in some instances, to minimize the seriousness of non-timeliness in cases where benefits were continued pending decision or the decision went against the applicant. The plaintiff, in addition to questioning the validity of the judge's finding that the department, by the time of trial, had come into substantial compliance with the timeliness regulations, ¹¹ also questioned the legal effect of such a finding, arguing that the Federal regulations required total compliance. ¹² Moreover, the judge's findings failed to deal with the timeliness of implementation, as distinguished from timeliness of decision-making.

Suffice it to say, without deciding the merits, that several of the plaintiff's complaints had enough substance to warrant appellate review and to raise the issue of inadequate representation of the plaintiff class by a representative who failed to take an appeal. Compare Wolpe v. Poretsky, 144 F.2d 505, 507-508 (D.C.Cir.), cert. denied, 323 U.S. 777, 65 S.Ct. 190, 89 L.Ed. 621 (1944); Pellegrino v. Nesbit, 203 F.2d 463, 465-466 (9th Cir.1953); Gonzales v. Cassidy, 474 F.2d 67, 76 (5th Cir.1973). See also Cascade Natural Gas Corp. v. El Paso Natural Gas Corp., 386 U.S. 129, 135-136, 87 S.Ct. 932, 936-937, 17 L.Ed.2d 814 (1967); United States v. American Tel. & Tel. Co., 642 F.2d 1285, 1293 & n. 38 (D.C.Cir.1980).

The Wolpe and Pellegrino cases held that, in...