Haddon Tp. Bd. of Ed. v. New Jersey Dept. of Ed.

• Decision Date: 18 July 1979
• Docket Number: Civ. A. No. 78-2193.
• Citation: 476 F. Supp. 681
• Parties: HADDON TOWNSHIP BOARD OF EDUCATION, Audubon Board of Education, Riverton Board of Education, Plaintiffs, v. NEW JERSEY DEPARTMENT OF EDUCATION, United States Department of Agriculture, Fred G. Burke, Commissioner of Education of the State of New Jersey and his successors in office, and Robert Bergland, Secretary of the United States Department of Agriculture and his successors in office, Defendants.
• Court: U.S. District Court — District of New Jersey

476 F. Supp. 681

HADDON TOWNSHIP BOARD OF EDUCATION, Audubon Board of Education, Riverton Board of Education, Plaintiffs, v. NEW JERSEY DEPARTMENT OF EDUCATION, United States Department of Agriculture, Fred G. Burke, Commissioner of Education of the State of New Jersey and his successors in office, and Robert Bergland, Secretary of the United States Department of Agriculture and his successors in office, Defendants.

Civ. A. No. 78-2193.

United States District Court, D. New Jersey.

July 18, 1979.

COPYRIGHT MATERIAL OMITTED

Steven A. Pardes, Sim, Sinn, Gunning & Fitzsimmons, P. A., Brick Town, N.J., for plaintiffs.

John J. Degnan, Atty. Gen., by Susan P. Gifis, Mark Schorr, Alfred E. Ramey, Jr., Deputy Attys. Gen., for defendants Fred G. Burke and New Jersey Dept. of Ed.

Robert J. Del Tufo, U.S. Atty., by Mary Catherine Cuff, Asst. U.S. Atty., Trenton, N.J., for defendants Robert Bergland and U.S. Dept. of Agriculture.

OPINION

BROTMAN, District Judge.

This is an action by three local school boards to compel the United States Department of Agriculture and the New Jersey Department of Education to reimburse their schools under the National School Lunch Act for nutritionally adequate lunches provided by the schools but consumed by the students at their homes. Defendants contend they cannot subsidize the schools because the Act allows reimbursement only for lunches consumed on school grounds.

I. Factual and Procedural Background

Plaintiffs are three local boards of education duly constituted under N.J.Stat. 18A:10-1 et seq. Each district is obligated under N.J.Stat. 18A:33-4 to provide lunch to all children enrolled in its district.¹ To comply with this mandate, plaintiff districts provide certain students with take-home bag lunches which may not be consumed on school premises but are taken by the students to their homes during a specified lunch period.

The district of the plaintiff Riverton School Board is one square mile in size with a single school situated in the center of the district. All students have always walked to and from school, and have always gone home for lunch. There are no funds budgeted to add a cafeteria or kitchen to the school, which was built around 1890. The take-home lunch program, in which meals are brought in from another kitchen, was initiated in September 1976 after parents indicated they wished their children to continue to come home for lunch as they always had done. Twice a year the District's Administrative Principal personally contacts the parents of children receiving free or reduced price lunches to insure that these children arrive home and consume the lunches themselves.

At the two elementary schools in the Audubon District, pupils have also traditionally gone home for lunch as the schools have no cafeteria or kitchen facilities. The students live no more than three-quarters of a mile from their schools. The take-home program began in January 1978.

The Haddon District began its take-home program in February 1977, and was in fact reimbursed by the Department of Education for seven months. Take-home lunches prepared elsewhere are provided for all children in four elementary schools; in the fifth elementary school about half of the children are allowed to remain in school to eat their noon meal since they are bussed in from a remote area of the township. No school has a cafeteria or kitchen, and students at the fifth school eat lunch in that building's multipurpose room.

Neither the state nor federal government contends that these take-home lunches fail to meet applicable nutrition standards.

Under the National School Lunch Act, 42 U.S.C. § 1751 et seq., federal financial assistance is given to states to help schools defray the costs of serving lunches to school pupils. States participating in the program enter into written agreements with the United States Department of Agriculture (USDA), and match each federal dollar with three state dollars. The states are funded by a formula which depends, in part, on the number of school children provided lunches. The combined funds are distributed by the states to local school boards. Children from needy families are eligible for free or reduced price lunches under the program.

Federal money is available for purchase of food service equipment. 42 U.S.C. § 1754. However, under USDA regulations, income from a lunch program may not be used to purchase land, construct new buildings or alter existing ones. 7 C.F.R. § 210.7(b) (1978).

While each plaintiff entered into agreements with the New Jersey Department of Education, which administers the School Lunch Act for the state, the Department has refused to reimburse the districts. It has also asked the Haddon Township Board to repay the state funds paid to the Board for lunches served between February and October 1977.

The Department's refusal to fund these districts is based on the USDA's position that take-home lunches do not qualify for subsidy under the Lunch Act. Apparently the Department believes USDA will not match funds paid by the state for such lunches. The take-home concept first came to the attention of USDA officials informally in 1975. In June 1977 the state forwarded a description of the Riverton Board's program, with a supporting legal memorandum submitted by the Board, to the USDA regional director for New Jersey. The material was then forwarded to Washington.

By letter dated August 12, 1977, Lewis B. Straus, the Administrator of the Food and Nutrition Service, the USDA agency administering the Lunch Act, requested a legal opinion on the Riverton program from Sarah C. Weddington, USDA General Counsel. On December 7, 1977, John A. Harris, Assistant General Counsel, sent Straus a two-page opinion letter briefly analyzing the legal issue and concluding: "In our opinion, there is no authority in the National School Lunch Act for payment of claims for reimbursement for take-home lunches." This letter was forwarded to the USDA regional office on December 21, and apparently then brought to the attention of state officials.

Plaintiffs have sued the USDA, state Department of Education and the agencies' respective officers for monetary, declaratory and injunctive relief. Plaintiffs ask the court to hold that the School Lunch Act does not require in-school consumption of meals, that the two agencies cannot so require, and accordingly to order the state to reimburse the plaintiffs for meals previously served and those which will be served in the future.

Jurisdiction is asserted under 28 U.S.C. § 1331 because of the presence of questions of federal statutory interpretation.² Plaintiffs' cause of action against the USDA and Secretary Bergland is based on review of final agency action under § 10(a) of the Administrative Procedure Act (APA), 5 U.S.C. § 702. The cause of action against the Department of Education and Commissioner Burke is based on common law breach of the written agreements between the state and school boards, and also their failure to adhere to the terms of the Act.

As no material facts are at issue, all parties have moved for summary judgment, Fed.R.Civ.P. 56. Defendants' primary argument is that the School Lunch Act prohibits reimbursement for take-home meals. Plaintiffs contend that the Act requires funding of such meals. Alternatively, the school boards argue that § 4 of the APA, 5 U.S.C. § 553, required the federal agency to provide notice of the proposed rule in the Federal Register and an opportunity for interested persons to comment, and that the agency failed to follow these rulemaking procedures before the December 1977 opinion letter was issued. Defendants counter that this ruling was interpretative, and therefore exempt from the § 553 requirements. See § 553(b)(A).

The federal defendants also contend that the agency decision is not ripe for review, and the state defendants further argue, in a motion to dismiss, Fed.R.Civ.P. 12(h)(3), that plaintiffs have failed to meet the $10,000 jurisdictional amount. The court will first consider the jurisdiction and ripeness issues before turning to the questions of agency procedure and statutory interpretation.

II. Subject Matter Jurisdiction over State Defendants

The state defendants, noting that the complaint fails to allege jurisdictional amount, maintain that the suit against them must be dismissed for lack of subject matter jurisdiction. Under a 1976 amendment to 28 U.S.C. § 1331(a), the $10,000 jurisdictional amount is no longer required for actions brought against an agency of the United States or an officer thereof. Pub.L. No. 94-574, § 2, 90 Stat. 2721 (1976). But jurisdictional amount is still required for claims against state officials and agencies.

Plaintiffs have not sought to amend their complaint to allege a jurisdictional amount, nor is there evidence in the record conclusively demonstrating that more than $10,000 is at stake for each plaintiff. However, the complaint will not be dismissed for failure to plead amount in controversy, Schlesinger v. Councilman, 420 U.S. 738, 744 n. 9, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975), because the court finds that the claims against the state can be heard under the doctrine of pendent party jurisdiction.

The doctrine of pendent jurisdiction allows a federal court to hear a claim lacking an independent jurisdictional basis where it is brought in conjunction with a significant claim that is properly based, and the two claims "derive from a common nucleus of operative fact" and "are such that a court . . . would ordinarily be expected to try them . . . in one judicial proceeding . . .." United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). The instant litigation clearly meets this test.

The Gibbs court was concerned with constitutional power³ to hear a pendent claim between the same parties. But in a more recent case involving an additional claim against an additional party—a pendent party—the Supreme Court...