LaRue v. Swoap

FRIEDMAN, Acting P. J.

I dissent. The appeal presents three principal questions: (1) whether petitioners are entitled to retroactive relief in the form of downward adjustment in the price of future food stamp allotments as a means of curing erroneous past deprivations; (2) whether the California courts have jurisdiction to grant this relief through this mandamus action against the state Director of Benefit Payments and (3) whether the federal Department of Agriculture is an indispensable party to the action. I would answer the first two questions in the affirmative, the third in the negative.

As a matter of substantive law, persons who are wrongfully denied food stamps by the administering state agency are entitled to retroactive relief in the form of downward adjustment in the price of future food stamp allotments; that sort of relief, rather than a retroactive award of stamps, is consistent with the statutory purpose of assuring that stamps will be used for nutritional purposes; the cost of the adjustment is to be borne solely by the United States Department of Agriculture and not by the state or its administering agencies. (Carter v. Butz (3d Cir. 1973) 479 F.2d 1084 (cert. den. Dec. 10; 1973); Bermudez v. United States Department of Agriculture (1973) 490 F.2d 718 [160 App.D.C. 150] (cert. den. Dec. 10, 1973); Stewart v. Butz (6th Cir. 1974) 491 F.2d 165.)

The Food Stamp Act of 1954 calls upon each participating state to provide “for the granting of a fair hearing and a prompt determination thereafter to any household aggrieved by the action of a State agency ... .” (7 U.S.C. § 2019(e)(8).) California’s fair hearing procedure includes Welfare and Institutions Code section 10962, which supplies the directions for judicial review of administrative appeals decided by the state’s Director of Benefit Payments. Section 10962 declares that it is “the exclusive remedy ... for review of the director’s decision.” Moreover, it proclaims that the “director shall be the sole respondent in such proceedings.” In approving California’s participation in the food stamp program, the Secretary of Agriculture approved and consented to the state’s “fair hearing” procedures, including section 10962.

After exhausting her “fair hearing” remedies before the state Director of Benefit Payments, petitioner, on October 20, 1973, filed this mandamus action in compliance with the express demands of section 10962. That statute identified her “exclusive remedy.” It told her that the state director was to be the “sole respondent.” Now, two years later, the majority of this court tell her that she indulged in an “erroneous course of action,” that she should have ignored section 10962, should have proceeded in the federal court and could not proceed without naming the Secretary of Agriculture in addition to the “sole respondent” designated by state law.

A host of decisions (whose citation is unnecessary here) affirm the California courts’ jurisdiction to review benefit entitlement decisions arising under federal-state cooperative social welfare programs. This is just another social welfare review proceeding. The joint food stamp program differs from other joint programs only in these two respects: (a) the USDA rather than HEW is the federal administering agency; (b) the state bears only administrative expenses and does not share in benefit costs. These are distinctions without juridical effect. Here, as in other joint social welfare programs, the authorized federal agency has approved a state program which places administrative responsibility in the California counties and in the state Department of Benefit Payments; here, as in other social welfare programs, legal errors of the state administrator are correctable through mandamus actions in the state courts. In Carter, Bermudez and Stewart, the plaintiffs had chosen to assert their food stamp entitlement in federal court actions without reference to any judicial review statute comparable to section 10962 of the California Welfare and Institutions Code. Nothing in those decisions debars parallel holdings via administrative mandamus in the California courts.

On October 29, 1973, when this suit was filed, it stood on the procedural foundation supplied by Welfare and Institutions Code section 10962 and on the substantive foundation supplied by Carter v. Butz, decided May 29, 1973, and Bermudez v. Butz, decided October 10, 1973. The former distinctly pointed out that the recipients’ right to food stamps was a matter of statutory entitlement. (Carter v. Butz, supra, 479 F.2d at p. 1087, fn. 10.) Now, according to the majority, petitioners cannot pursue substantive entitlement in the state courts because Congress has not consented to suits against the Secretary of Agriculture in the state courts and because the latter is an indispensable party. That holding effectively nullifies Welfare and Institutions Code section 10962, even though the Secretary of Agriculture approved it as part of California’s “fair hearing” mechanism.

The interest of the federal administrator in this lawsuit underwent a change after the lawsuit had been filed. On December 10, 1973, a few weeks after Mrs. LaRue filed this suit, the federal Supreme Court denied certiorari in the Carter and Bermudez cases. That action confirmed the statutoiy entitlement not only of the plaintiffs in those cases but also the statutoiy entitlement of our own petitioner, Mrs. LaRue. The USDA then adopted a regulation purportedly denying entitlement to recipients who had requested a “fair hearing” before July 31, 1972. Mrs. LaRue was one of those recipients.

In my view, the USDA exceeded its implementary authority by interposing an administrative cut-off date to destroy Mrs. LaRue’s statutory entitlement. (Stewart v. Butz, 356 F.Supp. 1345, affd. 491 F.2d 165; cf. 5 U.S.C. § 706.) To the extent that it has an interest in defending its regulation, the USDA acquired that interest after the lawsuit had been filed. It would be naive to suppose it has no knowledge of the lawsuit. Whether or not USDA elects to intervene, its election cannot affect petitioner, who filed this suit in compliance with the letter and spirit of California’s federally approved “fair hearing” procedure.

The majority opinion imposes intolerable and expensive choice-of-forum problems upon recipients of joint federal-state welfare programs. It refuses recognition to Welfare and Institutions Code section 10962 as part of .California’s federally approved “fair hearing” procedure. I would reverse the judgment.