Rodway v. U.S. Dept. of Agriculture, No. 74-1303

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore WRIGHT, McGOWAN and WILKEY; J. SKELLY WRIGHT; WILKEY
Citation168 U.S.App.D.C. 387,514 F.2d 809
Decision Date12 June 1975
Docket NumberNo. 74-1303
PartiesMiriam RODWAY et al., Appellants, v. The UNITED STATES DEPARTMENT OF AGRICULTURE et al.

Page 809

514 F.2d 809
168 U.S.App.D.C. 387
Miriam RODWAY et al., Appellants,
v.
The UNITED STATES DEPARTMENT OF AGRICULTURE et al.
No. 74-1303.
United States Court of Appeals,
District of Columbia Circuit.
Argued March 5, 1975.
Decided June 12, 1975.

Ronald F. Pollack, New York City, with whom Roger A. Schwartz, New York City, and John R. Kramer, Washington, D. C., were on the brief, for appellants.

Raymond J. Coughlan, Jr., Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Robert M. Werdig, Jr., and David G. Larimer, Asst. U. S. Attys., were on the brief, for appellees.

Before WRIGHT, McGOWAN and WILKEY, Circuit Judges.

Opinion for the court filed by Circuit Judge WRIGHT.

Statement concurring in the result and in Parts I and II of the court's opinion filed by Circuit Judge WILKEY.

J. SKELLY WRIGHT, Circuit Judge:

Plaintiffs-appellants challenge the coupon allotment system established by the United States Department of Agriculture (USDA) to implement the directive of the Food Stamp Act, 7 U.S.C. §§ 2011-2025, that food stamp recipients be given "an opportunity to obtain a nutritionally adequate diet * * *." Id. § 2013(a). See also id. §§ 2011, 2014(a), 2016(a). We find that the Secretary of Agriculture violated the procedural requirements of Section 4 of the Administrative Procedure Act (APA), 5 U.S.C. § 553 (1970), in promulgating the coupon allotment system, that the system is therefore void as promulgated, and that the case must be remanded to the Secretary for new proceedings.

I

The Food Stamp Act (the Act) was first passed in 1964. Its purposes were to distribute the agriculture surplus of this nation in a beneficial manner, to safeguard the health and well-being of our citizens, and to raise the level of nutrition among low-income households. 7 U.S.C. § 2011 (1964). The Act allows eligible recipients to purchase food stamps (coupons) at prices significantly below their face value. The stamps, in turn, may be used at face value to purchase food at certain retail stores. The cost of the coupons for each household is variable; the Act directs that it "shall represent a reasonable investment on the part of the household, but in no event more than 30 per centum of the household's income * * *." 7 U.S.C. § 2016(b). The original Act directed the

Page 812

Secretary of Agriculture (the Secretary) to administer the program so that "eligible households * * * shall be provided with an opportunity more nearly to obtain a nutritionally adequate diet through the issuance to them of a coupon allotment * * *." 7 U.S.C. § 2013(a) (1964) (emphasis added). In 1971, however, the Act was amended and this language was significantly altered. The italicized words "more nearly" were deleted from the Act, so that the Secretary's duty became to provide food stamp recipients "with an opportunity to obtain a nutritionally adequate diet * * *." 7 U.S.C. § 2013(a). See also id. §§ 2011, 2014(a), 2016(a). Essentially, it is the effect of this change that is here at issue.

Following the 1971 amendments, the Secretary published notice of a proposed rule-making, 36 Fed.Reg. 7240 (1971), inviting comments from interested parties. New regulations, all dealing with the administration of the program, not with the size of the coupon allotments, were issued on July 29, 1971. Id. at 14102-14117. New coupon allotments were issued on April 16 and 17, id. at 7273, 7320-7321, and reissued in slightly revised form on July 29, 1971. Id. at 14118-14120. The coupon allotment system was based on the cost to a hypothetical family of four 1 of the so-called Economy Food Plan, the least costly of five "family food plans" developed by USDA. 2 The allotment for this hypothetical family was $108 per month, with allotments ranging from $32 per month for a family of one person to $180 per month for a family of eight persons. For each person over eight $16 was added to the monthly allotment. 3 Id. at 14118. The allotments thus reflected the economies of scale that would benefit larger households.

Plaintiffs-appellants began this litigation in December 1971, seeking declaratory and injunctive relief because of the Secretary's alleged violations of the Food Stamp Act. The individual appellants are members of nine low-income households, all of which receive food stamps. They sue on behalf of themselves and others similarly situated. The other appellants are the City of New York, the Commonwealth of Pennsylvania, and the National Welfare Rights Organization and its affiliates. In District Court appellants charged the Secretary was violating the Act in two ways: 4 (1) the Secretary's Economy Food Plan allegedly did not provide a nutritionally adequate diet and so its use violated the Act; and (2) the allotment system, because it was based on an average family and on average food prices and preferences, and because it did not continually reflect the current cost of food, did not provide all food stamp recipients with the opportunity to purchase even the Economy Food Plan. Complaint, PP 6 & 9, App. 9a-11a. In addition, appellants sought a preliminary injunction to prevent implementation of the new coupon allotments because they raised the cost of the coupons significantly, increasing the burden on low-income families. This request for preliminary relief was withdrawn when USDA rolled back its price increases on January 26, 1972. 37 Fed.Reg. 1180.

Page 813

On April 7, 1972 USDA submitted, with supporting documents, a motion to dismiss or, in the alternative, for summary judgment. App. 113a. The District Court granted appellees' motion for summary judgment on July 7, 1972, holding that the Secretary's price rollback had mooted the controversy. App. 251a-252a. On appeal, this court reversed the District Court and remanded the case for further proceedings. Rodway v. United States Department of Agriculture, 157 U.S.App.D.C. 133, 482 F.2d 722 (1973). We held:

While the rollback in the price increases for stamps removed this cause of complaint and rendered this issue moot, it did not alter or render moot the more substantial claim that the allotment levels established by USDA failed to satisfy the requirements of the Act.

157 U.S.App.D.C. at 137, 482 F.2d at 726.

On remand, the District Court sought to narrow the issues so as to permit a final adjudication. Thereupon, appellants submitted a motion for partial summary judgment, App. 273a, accompanied by a statement of material facts not in dispute, App. 276a-292a, and a statement of genuine issues, App. 293a-298a. USDA filed a supplemental memorandum in support of its motion for summary judgment. App. 299a-301a. Without hearing oral argument, the District Court, on December 12, 1973, granted USDA's motion for summary judgment and denied appellants' motion for partial summary judgment. Rodway v. United States Department of Agriculture, D.D.C., 369 F.Supp. 1094 (1973). Appellants again appealed to this court.

At oral argument it became apparent that the Secretary's compliance with the procedural requirements of the APA in promulgating the allotment regulations was a substantial issue in this case, although it had not been raised in the District Court or in the prior appeal to this court. On their face the regulations had seemingly been promulgated without notice, solicitation of comments, or issuance of a basis and purpose statement. See 5 U.S.C. § 553. Accordingly, we ordered the parties to respond in writing to a list of questions probing the consequences of this apparent omission. 5 Now the parties have provided their answers. We find that the Secretary has indeed failed to comply with the requirements of the APA, and that the failure is fatal to the asserted validity of the allotment regulations.

II

All parties agree that the APA would not, by its own terms, govern the issuance of the allotment regulations. Expressly exempted from the procedural requirements of Section 4 are any matters "relating to * * * public property, loans, grants, benefits, or contracts." 5 U.S.C. § 553(a)(2). The food stamp program would appear to be a matter relating to public "grants" or " benefits," thereby exempting rules relating to the program from the APA. See Rodriguez v. Swank, N.D.Ill., 318 F.Supp. 289 (1970), affirmed, 403 U.S. 901, 91 S.Ct. 2202, 29 L.Ed.2d 677 (1971) (A.F.D.C. benefits excluded). See generally Bonfield, Public Participation in Federal Rulemaking Relating to Public Property, Loans, Grants, Benefits, or Contracts, 118 U.Pa.L.Rev. 540 (1970).

Page 814

On July 24, 1971, however, as a result of a recommendation of the Administrative Conference of the United States, USDA promulgated a regulation making the procedural requirements of Section 4 of the APA applicable to all of its rule-making relating to "public property, loans, grants, benefits, or contracts." The regulation was effective immediately. 36 Fed.Reg. 13804. It is, of course, well settled that validly issued administrative regulations have the force and effect of law. See, e. g., Morton v. Ruiz, 415 U.S. 199, 235, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974); Vitarelli v. Seaton, 359 U.S. 535, 539-540, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 388, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957). Thus the regulation fully bound the Secretary to comply thereafter with the procedural demands of the APA. The allotment regulations here at issue were promulgated five days later, on July 29, 1971. 36 Fed.Reg. 14118-14120.

USDA does not argue that it was not bound by the regulation of July 24, 1971, 6 but rather suggests that it has indeed complied fully with the APA in its promulgation of the allotment procedures. However, even a superficial examination of the challenged regulations and USDA's purported manner of compliance shows this to be untrue. The APA requires an agency to provide the public with notice of proposed rules, an opportunity to comment upon them, and "a concise general statement of their...

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139 practice notes
  • Humana of South Carolina, Inc. v. Califano, Nos. 76-1953
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 29, 1978
    ...of Certain Exemptions from the APA Rulemaking Requirements, 118 U.Pa.L.Rev. 611 (1970). 104 See Rodway v. Department of Agriculture, 168 U.S.App.D.C. 387, 514 F.2d 809, 814 (1975); Florida v. Mathews, 422 F.Supp. 1231, 1250 (D.D.C.1976). See generally Service v. Dulles, 354 U.S. 363, 388, 7......
  • Citizens to Save Spencer County v. U.S. E.P.A., BY-PRODUCTS
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 17, 1979
    ...& Accessories Ass'n v. Boyd, supra, 132 U.S.App.D.C. at 208, 407 F.2d at 338. See also Rodway v. United States Dep't of Agriculture, 168 U.S.App.D.C. 387, 395, 514 F.2d 809, 817 (1975) (basis and purpose statement not to be "abstract explanation" but "to respond in a reasoned manner to the ......
  • State of SC ex rel. Patrick v. Block, Civ. A. No. 82-3172-0.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • February 10, 1983
    ...13,804 (1971), was decided by the District of Columbia Court of Appeals in the case of Rodway v. United States Department of Agriculture, 514 F.2d 809 (D.C.Cir.1975). Therein, Judge J. Skelly Wright On July 24, 1971, however, as a result of a recommendation of the Administrative Conference ......
  • US v. Sunny Cove Citrus Ass'n, No. CV-F-91-311 OWW
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 18, 1994
    ...the agency is required to follow the informal rule making procedures of 5 U.S.C. § 553. See Rodway v. United States Dep't of Agriculture, 514 F.2d 809, 813-14 (D.C.Cir.1975) ("Rodway"). Informal rule making often is referred to as "notice and comment" rule making. Section 553(b) (b) General......
  • Request a trial to view additional results
138 cases
  • Humana of South Carolina, Inc. v. Califano, Nos. 76-1953
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 29, 1978
    ...of Certain Exemptions from the APA Rulemaking Requirements, 118 U.Pa.L.Rev. 611 (1970). 104 See Rodway v. Department of Agriculture, 168 U.S.App.D.C. 387, 514 F.2d 809, 814 (1975); Florida v. Mathews, 422 F.Supp. 1231, 1250 (D.D.C.1976). See generally Service v. Dulles, 354 U.S. 363, 388, 7......
  • Citizens to Save Spencer County v. U.S. E.P.A., BY-PRODUCTS
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 17, 1979
    ...Accessories Ass'n v. Boyd, supra, 132 U.S.App.D.C. at 208, 407 F.2d at 338. See also Rodway v. United States Dep't of Agriculture, 168 U.S.App.D.C. 387, 395, 514 F.2d 809, 817 (1975) (basis and purpose statement not to be "abstract explanation" but "to respond in a reasoned m......
  • State of SC ex rel. Patrick v. Block, Civ. A. No. 82-3172-0.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • February 10, 1983
    ...13,804 (1971), was decided by the District of Columbia Court of Appeals in the case of Rodway v. United States Department of Agriculture, 514 F.2d 809 (D.C.Cir.1975). Therein, Judge J. Skelly Wright On July 24, 1971, however, as a result of a recommendation of the Administrative Conference ......
  • US v. Sunny Cove Citrus Ass'n, No. CV-F-91-311 OWW
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 18, 1994
    ...the agency is required to follow the informal rule making procedures of 5 U.S.C. § 553. See Rodway v. United States Dep't of Agriculture, 514 F.2d 809, 813-14 (D.C.Cir.1975) ("Rodway"). Informal rule making often is referred to as "notice and comment" rule making. Sectio......
  • Request a trial to view additional results

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