Lidie v. State of California
| Decision Date | 10 April 1973 |
| Docket Number | No. 26845.,26845. |
| Citation | 478 F.2d 552 |
| Parties | Victoria Ann LIDIE et al., Appellants, v. STATE OF CALIFORNIA et al., Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Daniel S. Brunner (argued), Legal Aid Foundation of Long Beach, San Pedro, Cal., for appellants.
Edward M. Belasco, Deputy Atty. Gen. (argued), Lee D. Barker, Deputy County Counsel (argued), Evelle J. Younger, Atty. Gen., John D. Maharg, County Counsel, Los Angeles, Cal., for appellees.
Before BROWNING and GOODWIN, Circuit Judges, and EAST,* District Judge.
Plaintiffs, representing a class of applicants for food stamps, brought action against the State of California, the County of Los Angeles, and certain named officials, seeking declaratory and injunctive relief and damages.
The state participates in the Federal Food Stamp program. The food stamp legislation required state plans submitted to the Secretary of Agriculture to provide that "the State agency shall undertake the certification of applicant households in accordance with the general procedures and personnel standards used by them in the certification of applicants for benefits under the federally aided public assistance programs * * *." 7 U.S.C. § 2019(e) (2) (1970), subsequently amended, Act of October 30, 1972, Pub.L. No. 92-603, § 411(d), 86 Stat. 1491.
Department of Health, Education and Welfare regulations required benefits under the federally aided public assistance programs to be provided within 30 days of the application. H.E.W. Handbook of Public Assistance Administration, Part IV, 2300(b). Plaintiffs assert that state and local officials had not followed this timetable in the administration of the food stamp program.
The first question is whether the district court, and therefore this court, has jurisdiction of the action. Plaintiffs relied for jurisdiction on 28 U.S.C. § 1343 and 42 U.S.C. § 1983. Because they did not allege the deprivation of any constitutional rights, their complaint raised in acute form the question left unanswered in King v. Smith, 392 U.S. 309, 312 n. 3, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968): whether 28 U.S.C. § 1343 gives the federal courts jurisdiction to hear purely statutory claims.
In a supplementary brief, plaintiffs have requested leave to amend their complaint in this court so that it will assert the deprivation of a constitutional right. They also claim jurisdiction under 28 U.S.C. § 1337. Although amendment in the court of appeals is unusual, and not a practice to be encouraged, we believe that a substantial saving in judicial time and labor justifies the amendment in this case. 28 U.S.C. § 1653; Barrow Development Co. v. Fulton Insurance Co., 418 F.2d 316, 12 A. L.R.Fed. 420 (9th Cir. 1969). We grant leave to amend.
The amended complaint states facts establishing jurisdiction under the provision of § 1337. The food stamp program has been held to be such an act. Moreno v. United States Department of Agriculture, 345 F.Supp. 310, 313 (D.D. C.1972), prob. juris. noted, 409 U.S. 1036, 93 S.Ct. 526, 34 L.Ed.2d 485 (1972); Murphy v. Colonial Federal Savings and Loan Ass'n, 388 F.2d 609 (2d Cir. 1967). We need not reach the claim that federal jurisdiction is based upon a denial of a constitutional right.
The district court dismissed the action, holding that: (1) the defendants had violated no federal law in their processing of food stamp applications; (2) there was no actual controversy, because those plaintiffs entitled to receive food stamps had gotten them; (3) the plaintiffs had not established a class of persons entitled to relief, for they had not shown that the defendants had in any case wrongfully failed to provide food stamps within 30 days; and (4) the plaintiffs had failed to show that any of them came within the class which they sought to establish.
The district court's dismissal was error. The action is not moot if either the class action for an injunction or the demand for damages survives. Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Norman v. Connecticut Board of Parole, 458 F.2d 497 (2d Cir. 1972). There is a live issue regarding plaintiffs' claim for damages.
At the time this action was brought, the 30-day rule was binding on the Secretary of Agriculture. The 30-day period ran from the date the agency received an expression of the applicant's desire to receive aid.
If the food stamp program were run by the Department of Health, Education and Welfare, the 30-day rule would be mandatory. Rodriguez v. Swank, 318 F.Supp. 289 (N.D.Ill., 1970), aff'd per curiam, 403 U.S. 901, 91 S.Ct. 2202, 29 L.Ed.2d 677 (1971); Like v. Carter, 448 F.2d 798 (8th Cir. 1971), cert. denied, 405 U.S. 1045, 92 S.Ct. 1309, 31 L.Ed.2d 588 (1972). The 30-day rule was one of the "Requirements for State Plans" in the H.E.W. Handbook, Part IV, § 2200(b)(3). The regulations which stated that the 30-day period terminated when "the applicants * * * receive their first assistance check * * *" and which limited the circumstances under which the state agency could delay for more than 30 days were among the "Criteria for the Administration of the Plans," H.E.W. Handbook, Part IV, § 2300. While no "assistance checks" are involved in the food stamp program, the equivalent would appear to be the "Authorization to Purchase" card given to recipients rather than the mere submission of recipients' names to the "District Food Stamp Budget Unit."
At the time the action was commenced, the Secretary of Agriculture did not purport to vary the H.E.W. standards or adjust them to the needs of his program, but, by a regulation repeating the statutory language referring to the H.E.W. standards, adopted those standards as his own. 7 C.F.R. § 1601.1(g) (1970). Under the regulation, we hold that an applicant eligible for stamps was entitled to receive them within 30 days of his application.
But the abstract right to relief, upon a proper showing, does not end the matter. Plaintiffs are not entitled to the injunctive relief they seek, for two reasons: (1) at the time this action was brought the individual plaintiffs were not proper representatives of a class; and (2) changes in the relevant regulations since the action was filed have deprived the plaintiffs' contentions of their original force.
The claims and defenses of these so-called representative parties are not typical of the claims and defenses of the alleged class within the meaning of Fed.R.Civ.P. 23(a) (3). Given the many disputed factual issues peculiar to individual plaintiffs, a class action is not warranted under Fed.R.Civ.P. 23(b) (3). The H.E.W. regulation relied on by the plaintiffs contemplates that the 30-day time limit will be exceeded "in unusual situations * * * in a small percentage of cases * * *." H.E.W. Handbook, Part IV, § 2300(b) (6). The situations of the original plaintiffs, Cooley, Lidie, and Jordan, appear to be unusual. Cooley was not eligible for food stamps at all, because he ate a majority of his meals in restaurants. Lidie and Jordan had been on the food stamp rolls, but were dropped for failure to use the stamps. The delay they complain of was in their attempt at recertification. There were also many disputed factual issues concerning each of their applications.
Nor could the plaintiffs' "Motion to Amend" have cured their problem. The motion was actually a motion to intervene by several additional plaintiffs. Motions to intervene are liberally granted in mootness situations to avoid the problem of the granting of selective relief by defendants and the avoidance of the "dismissal or compromise" provisions of Fed.R.Civ.P. 23(e). But where the original plaintiffs were never qualified to represent the class, a motion to intervene represents a back-door attempt to begin the action anew, and need not be granted. Washington v. Wyman, 54 F.R.D. 266 (S.D.N.Y.1971).
The heart of the class action is the preponderance of questions of law and fact common to the plaintiffs seeking to assert the rights of the alleged class. The new parties sought to be interjected into the action could not enhance the common cause, and would add to...
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