Petition — Austin v. Roberts

Supreme Court brief1981

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APR 3 1981

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IN THE SUPREME COURT OF THE seasthe STATES...

OCTOBER TERM, 1980 |

T. EDWARD AUSTIN, INDIVIDUALLY AND IN HIS

OFFICIAL CAPACITY AS STATE ATTORNEY, FOURTH

JUDICIAL CIRCUIT, STATE OF FLORIDA, Et al.,

PETITIONERS

ALICE ROBERTS, et al., RESPONDENTS

PETITION FOR WRIT OF CERTIORARI FROM

THE UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT TO THE UNITED STATES SUPREME

COURT

For Petitioners:

toi f fa

Assistant State Attorney

State Attorney's Office

Duval County Courthouse

Jacksonville, Florida 32202

904-633-6910

Rehabilitative Services

P. O. Box 2417-F

Jacksonville, Florida 32211

904-725-3080

QUESTIONS FOR REVIEW

Whether federal regulations per-

taining to food stamps lawfully pro-

hibit the State Attorney's Office of

the Fourth Judicial Circuit of Florida

from looking at the files of food stamp

recipients to determine if fraud is

present so that access to the files

should be enjoined. The answer to this

question depends upon (1) whether the

relevant federal regulations do pro-

hibit this access and (2) whether such

prohibitive application of the federal

regulations reaches beyond the intent

of underlying Congressional legisla-

tion, and, thereby, is invalid.

List of Parties

Petitioner-defendants

T. Edward Austin (erroneously listed in

early pleadings by plaintiffs

below as Edward T. Austin) indi-

vidually and in his official

Capacity as State Attorney, Fourth

Judicial Circuit, State of Florida

Maurice Atwater, individually and in

his official capacity as Assistant

State Attorney, Fourth Judicial

Circuit, State of Florida

Thomas Saitta, individually and in his

official capacity as Assistant

State Attorney, Fourth Judicial

Circuit, State of Florida

David C. Pingree, in his official ca-

Paul

pacity as Secretary, State of

Florida, Department of Health and

Rehabilitative Services

Ayers, individually and in his

official capacity as Supervisor,

Nassau County Food Stamp Office,

District IV, State of Florida,

Department of Health and

Rehabilitative Services

Herbert M. Surles, individually and in

his official capacity as Food

Stamp Specialist, District IV,

State of Florida, Department of

Health and Rehabilitative Services

Respondent-plaintiffs

Alice Roberts

Mary Jo Roberts

Jane Doe

All other persons similarly situated

TABLE OF CONTENTS

Pages

Questions for RevieW.........eeeeeees i

BASE OF POURED sci cccvcccccciscocssnes i-ii

Table of Contents... .ccccccccccvccee iii

Table of Authorities...........s5005. iv

Reported Opinions Below.............. 1

SUCLOCICCIGRs 6 ccccccccreccscvccccevess 1-2

Constitutional, Statutory, and Regula-

Cory PLOVISLONS.. os cvcccscvcccccsccoss 3

Statement of the Case..............4. 4-14

Reasons for Allowing Writ............ 15-36

Appendix

Opinion of Decision Sought to be

BEVEOUNE 6 oc pcicccencivesccevceesess App.

1-55

Other Opinions and orders in the

CORR s cc ccccccccccccccceseseceseses App.

56-80

Constitutional, Statutory, and

Regulatory Provisions............+. App.

81-174

iii

TABLE OF AUTHORITIES

CASES

Branzburg v. Hayes, 408 U.S. 665

C1972). ccccccccvccvcveccscceccecs

Davis v. United States, 328 U.S. 580

CIPRO Pc vccsccccccccvccreccvvceces

Florida v. Sievert, 312, So.2d 788

(2nd Dist. Ct. App., Fla 1975)...

Imbler v. Pachtman, 424 U.S. 409

CI97O) . ccccnvccccccccccsccccssvces

Imperato v. Spicola, 238 So.2d 505

2 SG oo | rer Ty

New York State Department of Social

Services v. Dublino, 413 U.S.

BOS (1973S). ccccccccccccscccccves

Roberts v. Austin, 632 F.2d 1202

(5th Cir. 1980). ..ccccccccccccces

App.

United States v. Martinez-fuerte, 428

U.S. 1116 (1976)... .ccccccccccces

CONSTITUTIONAL PROVISIONS

’

Pages

33-34

19, 30

16, 22

28, 30

1-55

Article I, §15, Florida Constitution.. 19, App.

Article V, §17, Florida Constitution.. 19, App.

ao SS Be rere 17, 31, App. 83-84

We, Sic sc cccseee 31, App. 84-87

ee ee ere 31, App. 87-88

Be aoe S Ot eee 30, App. 88-89

7 U.S.C. § 2020 (e)(8)....... 34, App. 89

og ae eS) eee 2, App. 89-90

Be A BS eee 9, App. 90-91

a Serene 9, App. 91-93

28 U.S.C. § 1343 (a)(3),(4).. 9, App. 93

§27.02, Florida Statutes views 19, App. 93

§409. 325, Florida Statutes... 5, 7, 35, App.

94-100

REGULATIONS

ee A ee: ee 2 ee 30, App. 101-102

Pos fe eo, FE) eee 30, App. 102-109

7 C.F.R. § 273 Heading..... 24, App. 109

SS Se oo eres 22, App. 109 et seq.

¢ Ge ems § 273.2 (e)....... 21, 22, App. 115-119

Lo 8 Me Bos = By) ee 21, App. 119 et seq.

7 C.F.R. § 273.2 (£)(4).. 22, App. 135-172

a Se Re ee . 26, App. 172 et seq.

7 C.F.R. § 273.16(e) 2..... 22, 33, App. 172-174

OTHER AUTHORITIES

Rule 17.1, Rules of the Supreme Court

of the United States............... 15

Rule 17.1 (c), Rules of the Supreme

Court of the United States......... 16

Establishing Priorities Among Programs

Aiding the Poor, Hearing before

the Senate Finance Committee,

92d Cong., Second Sess. at 149

OR een 27, 36

REPORTED OPINIONS BELOW

Petitioners seek review of the deci-

sion of the United States Court of Appeals

for the Fifth Circuit reported at

Roberts v. Austin, 632 F.2d 1202 (5th Cir.

1980), and contained herein at Appendix

a © (Roberts v. Austin, Id., reversed

the denial of a petition for preliminary

injunction by United States District Court

for the Middle District of Florida, the

district court's opinion being unreported

but contained herein at Appendix 72.)

JURISDICTION

Petitioners seek for this Court to

review the decision of Roberts v. Austin,

632 F.2d 1202 (5th Cir. 1980); the opinion

of Roberts v. Austin, is dated December 15,

1980; this decision was entered on

January 13, 1981, in that on that date the

United States Court of Appeals for the

Fifth Circuit entered its order denying

petitioners' Suggestion for Rehearing En

Banc, and issued its mandate. Petitioners

seek a writ of Certiorari pursuant to 28.

U.S.C. § 1254 (1).

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS

In that the involved constitutional,

statutory, and regulatory provisions are

lengthy, they are set out verbatim at

Appendix pages 81-174. Their citations are

as follows:

Constitutional Provisions

icle Oorida Constitution

Article v, §17 Florida Constitution

Statutory Provisions

7 U.S.C. §2013

§2014 (a)

§2020(a)

§2020(e)(8)

§1254(1)

§1331

§1337

28 U.S.C. §1343(a)(3), (4)

§27.02, Florida Statutes

§409.325, Florida Statutes

Regulations

7 C.¥.R.

aaaaaa

. . .

R §272.1 (f)

7 C.F.R. §272.4 (e)

7 C.F.R. §273 Heading

7 C.F.R. §273.2

7 C.F.R. §273.2 (e)

7 C.F.R. §273.2 (f£)

7 C.F.R. §273.2 (f£)(4)

7 C.F.R. §273.16 (e)

7 C.F.R. §273.16 (e)2

STATEMENT OF THE CASE

The circumstances precipitating this

law suit were generated by an inquiry by

the State Attorney's Office, Fourth

Judicial Circuit of Florida. This Fourth

Judicial Circuit is comprised of Nassau

County, Florida, Clay County, Florida, and

Duval County, Florida.

Indications from the United States

Department of Agriculture, Florida's

Department of Health and Rehabilitative

Services (HRS), and Florida's Department of

Public Assistance Fraud that food stamp

fraud was generally rampant came to the

attention of personnel in the _ State

Attorney's Office for the Fourth Judicial

Circuit of Florida. Information was

related to Maurice Atwater, an Assistant

State Attorney in the Fourth Judicial

Circuit, that the rate of food stamp fraud

is likely to be as high as forty (40)

percent of all food stamp cases. Based on

this information, an inguiry by personnel

of the State Attorney's Office ensued to

inquire into possible violations of Section

409.325, Florida Statutes, which renders

food stamp fraud a criminal violation of

state law in Florida. The investigation

began by personnel of the State Attorney's

Office seeking and obtaining access to

those food stamp files in Nassau County

that involved the receipt of in excess of

one hundred twenty-five dollars worth of

food stamps. The rationale for this

threshhold amount was that such cases were

more likely to involve fraud. The

threshhold was ultimately lowered to

approximately one hundred dollars. As a

result, personnel of the State Attorney's

Office looked at approximately three

hundred food stamp files and transcribed

several items from the files onto forms

constructed for the inquiry. The files

were obtained from H.R.S., the state agency

in charge of administering the Food Stamp

Program in Florida. The items were

selected because of their relevance to the

amount of food stamp issuance and,

therefore, to potential fraud. These

forms were then given to local police

officers to verify this issuance-relevant

information. The officers were given

express instructions by the State

Attorney's Office to not’ unnecessarily

discuss this information with anyone.

Initially, the police did not even know the

subject of the inquiry. The police's work

yielded one hundred twenty cases in which

questionable information was found. Of

these cases, seventy-eight (78) suspects

were arrested for food stamp fraud. Of

those arrested, sixty-seven (67) had pled

guilty, plead nolo contendere, or been

found guilty at trial by April 29, 1980.

Seven (7) have been dropped by the State

Attorney's Office or found not guilty.

Except for one deceased defendant, the

balance had not been disposed of by April

29, 1980. The foregoing statistics compute

to a successful prosecution rate of 91%.

(67/74 = .91). As of April 29, 1980,

upwards to approximately $15,500 in

restitution had been ordered as a part of

judicial sentences.

A similar method was used in Clay

County. There, the April, 1980, statistics

are as follows: Approximately 300 to 350

cases reviewed by the State Attorney's

Office; 61 arrests; 93.8% successful

prosecution rate (30/32 = .9375);

approximately $10,500 as amount’ of

restitution ordered as of April 25, 1980.

During 1977, 1978, 1979, and 1980

(until April 28, 1980) there have been a

total of 165 cases filed in Nassau and Clay

Counties alleging a violation of Section

409.325, Florida Statutes, the statute

including inter alia the food stamp fraud

provision. Eighty -four percent of these

were the product of the foregoing

investigation of the State Attorney's

Office (139/165 = .84).

The State Attorney's Office intends to

use a similar technique in Duval County.

Respondents (plaintiff below) have

been food stamp recipients who through

their legal aid lawyers filed a

class-action suit in the United States

District Court, Middle District of Florida,

Jacksonville Division, and complained that

T. Edward Austin, individually and in his

official capacity as the State Attorney for

the Fourth Judicial Circuit of Florida, and

two of his Assistant State Attorney s,

Maurice Atwater and Thomas Saitta, and

further, David C. Pingree, in his official

capacity as Secretary for the State of

Florida, Department of Health and

Rehabilitative Services, Paul Ayers, in-

dividually and in his official capacity as

a Supervisor in the Nassau County Food

Stamp Office, and Herbert M. Surles,

individually and in his official capacity

as a Food Stamp Specialist for Florida's

Department of Health and Rehabilitative

Services, violated certain rights of food

stamp recipients due to the above-described

inquiry. Mr. Austin is the’ chief

prosecutorial officer throughout the Fourth

Judicial Circuit and his authority and

duties, as well as those of his assistants,

such as Mr. Atwater and Mr. Saitta, extend

throughout that Circuit. The suit was filed

under jurisdictional statutes 28 U.S.C.

§1343(3) and (4), 28 U.S.C. §1331, and 28

U.S.C. §1337. It alleged that Mr. Austin,

Mr. Atwater, and Mr. Saitta violated

constitutionalized privacy rights of food

stamp recipients in Nassau and Clay

Counties by obtaining information from

their files containing applications and

other documents attendant to their

application for, and receipt of, food

stamps. These documents, as well as the

administration of the food stamp program in

Florida, are within the purview of

Florida's Department of Health’ and

Rehabilitative Services (H.R.S.). It has

been further claimed that any execution of

a plan for similar access in Duval County

should be enjoined. The suit requested

injunctive, declaratory, and wmonetary-

damage relief.

Similar relief was sought regarding

Mr. Pingree, Mr. Ayers, and Mr. Surles,

except allegations of violating federal

regulations and due process were added to

the claim against them.

The law suit was filed as a class

action with the Clerk of the District Court

in February, 1980. The class has not been

certified. Judge William Castagna, the

District Court judge presiding over the

case, denied plaintiffs' Motion for

Tempora’’y Restraining Order by Order dated

March 3, 1980. The Order ruled that the

suit did not have the requisite probability

of success to warrant issuing a Temporary

Restraining Order and that no threat of

immediate and irreparable injury was

demonstrated. On March 14, 1980, a Motion

to Dismiss was filed on behalf of Mr.

Austin, Mr. Atwater, and Mr. Saitta. Soon

thereafter, a Motion to Dismiss was filed

on behalf of Mr. Pingree, Mr. Ayers, and

Mr. Surles. Affidavits were filed in

support of the Motions to Dismiss. Judge

Cistagna has not yet ruled on these

motions. The depositions of Mr. Atwater,

Mr. Saitta, an H.R.S. employee, and two

investigators of the State Attorney's

Office were taken on March 19 and 21, 1980.

On March 28, 1980, Judge Castagna

heard arguments pertaining to legal aid's

Motion for Preliminary Injunction. The

Motion for Preliminary Injunction was

denied by Order dated April 11, 1980; this

order reaffirmed and elaborated on the

reasoning in the order denying the Motion

for a Temporary Restraining Order.

Legal aid took an appeal to the United

States Court of Appeals, Fifth Circuit, and

requested from the District Court an

injunction pending appeal and, in the

alternative, an injunction to allow them

time to seek such an injunction from the

Fifth Circuit Court of Appeals. The

District Court did not grant the former,

but did grant the latter for twenty days by

Order dated May 12, 1980. The Order

enjoined H.R.S. from releasing food stamp

case files to Mr. Austin "in the absence of

reasonable suspicion of fraud or a search

warrant." Thereafter, legal aid sought an

injunction pending appeal from the Fifth

Circuit Court of Appeals. On June 4, 1980,

the Fifth Circuit denied legal aid's Motion

for Injunction Pending Appeal.

On December 15, 1980, by an opinion

written by the Honorable Judge Hatchett,

the three-judge panel of the Fifth Circuit

reversed Judge Castagna's denial of the

Motion for Preliminary Injunction. The

Honorable Judge Hill concurred specially.

The three-judge panel held that State

Attorney access to a food stamp recipient's

file violated federal food stamp

regulations where there is no reasonable

suspicion of fraud as to that file. The

opinion indicated that H.R.S. will

determine when there is a _ reasonable

suspicion. Constitutional issues were not

reached. The Fifth Circuit by Order

entered January 13, 1981, denied a Motion

to Stay Mandate and denied a Suggestion for

Rehearing En Banc filed by the current

petitioners for a writ of Certiorari.

Consequently, the case has been remanded to

the District Court and there a preliminary

injunction has issued. Now, legal aid by a

memorandum in response to H.R.S.'s Motion

for Clarification of the preliminary

injunction order is attempting to require a

full due-process hearing prior to any

release of a recipient's file in a State

Attorney investigation.

REASONS FOR ALLOWING WRIT

Petitioners respectfully submit that

it is travesty to deny the State Attorney's

Office access to certain food stamp

recipients' files where there is reliable

information that the fraud rate may be as

high as forty percent (40%). At stake here

is the viability and integrity of not only

the State Attorney's Office, but also the

federal Food Stamp Program itself. Nothing

is more universally basic than the hunger

need. No law enforcement agency in Florida

is more basic than that of the State

Attorney's Office. Consequently

Petitioners submit that there are "special

and important reasons," Rule 17.1, Rules of

the Supreme Court of the United States, for

granting this writ. The Court of Appeals

for the Fifth Circuit has decided an

important question of federal law which has

not been, but should be, settled by this

Court. . Rule 17.1(c), Rules of the Supreme

Court of the United States.

The Fifth Circuit's decision would

seriously impede local law enforcement from

looking into an area where the suspected

fraud rate is forty percent (40%). Such a

concentration of criminal activity would

have a material bearing on the success of a

noble federal program, i.e. food stamps.

Furthermore, the decision would render

local law enforcement utterly powerless to

look into yet other areas of criminal

activity having a material bearing on the

Food Stamp Program.

The statistics cited in the foregoing

pages and cited:in Roberts v. Austin, 632

F.2d 1202, 1215 n.1, App. 55 (5th Cir.

1980), are indicative of the effectiveness

of the State Attorney's inquiry prior to

its being’ enjoined. The successful

prosecution rate was in excess of ninety

percent (90%). As a result of the

injunction there will be no prosecutions

based on the State Attorney's inquiry.

In essence, the State Attorney's

enjoined inquiry promoted the ultimate

purpose of the Food Stamp Act: "to

safeguard the health and well-being of the

nation's population by raising levels of

nutrition among low income individuals."

7 U.S.C. §2011. This, and similar language

in the Food Stamp Act (for example, "to

alleviate such hunger and malnutrition,"

Id.) should be the guiding litmus for

interpreting the Food Stamp Act’ and

regulations purportedly promulgated under

it. In ferreting out the food stamp cheats,

the State Attorney's inquiry promoted the

ultimate purpose of the Food Stamp Act by

ensuring that its funds were being devoted

to "low-income individuals," enhanced the

public's perception of the Food Stamp Act

that its resources were going to the truly

needy, and enforced a Florida Statute

rendering food stamp fraud a state crime.

Petitioners respectfully submit that

the Fifth Circuit's decision loses sight of

this fundamental test, the purpose of the

Food Stamp Act. This petition is

particularly timely in this era of national

austerity, national concern with excessive

federal regulation and with stealing from

programs such as this, and current public

evaluation of the Food Stamp Program.

Petitioners further submit that the

injunction encroaches upon the legitimate

functions of the State Attorney's Office.

An injunction prohibiting H.R.S. from

releasing the files to the State Attorney

until H.R.S. determines a _ reasonable

suspicion of fraud has the practical effect

of enjoining this legitimate mode of

inquiry by the State Attorney. An

injunction undermines the "courage and

independence," Imbler v. Pachtman, 424 U.S.

409, 423-25 (1976), with which the State

Attorney's Office should conduct § its

functions. And, the legitimate functions

of the State Attorney's Office in Florida

are quite broad.

The general scope of the authority of

the State Attorney's Office is succinctly

described by the Florida Supreme Court in

Eagan v. Demanio, 294 So.2d 639, 640 (Fla.

1974):

The state attorneys are consti-

tutional officers (Fla. Const.

art. V, §17, Fla. Stat. Ann.),

in whom the Legislature vested

the duty to prosecute (Fla.

Stat.,§27.02, Fla. Stat. Ann.).

Before filing an information

under oath (Fla. Const., art. I,

§15 Fla.Stat.Ann.), they neces-

sarily must conduct an investi-

gation to determine whether or

not they should execute the

statutory oath . ... .Invest-

igating activity is necessary

to the efficient execution

of a prosecutor's duty.

Accordingly, a Florida District Court of

Appeal has indicated that "[a] State

Attorney's power to investigate should not

lightly be circumscribed by protective

orders designed to accommodate the

convenience of witnesses." Florida v.

Seivert, 312 So.2d 788, 791 (2d Dist. Ct.

App., Fla. 1975). The Florida Supreme

Court has even gone so far as to describe

the State Attorney as a “one-man grand

jury." See Imperato v. Spicola, 238 So.2d

505, 506 (Fla. 1970).

The broad scope of the = State

Attorney's authority in Florida, of course,

woulé never legitimize an intrusion into a

federally preempting and cognizable right.

The only rights here, however, are those

woven with thin strands in the minds of

respondent-plaintiffs. They are fancied or

imagined "rights," which are insufficient

to provide the basis for any injunction.

In contrast to the State Attorney's

pursuit of legitmate functions and

promotion of the intent of the Food Stamp

Act, the Fifth Circuit and respondent-

plaintiffs have cited no statutory or

regulatory provision that expressly

prohibits access to food-stamp recipient

files. Instead, inference is built upon

inference; and, remote analogies are

involved.

First, the Fifth Circuit relies upon 7

C.F.R. §273.2(e) that provides that the

food stamp applicant's interview with the

caseworker shall be confidential. Yet

nothing is cited indicating any broader

intent than an interest in the confidential

circumstances surrounding each interview

per se. The regulation ee "The

applicant's right to privacy .‘ shall be

protected during the interview." (Emphasis

supplied) It continues by treating the

facilities of the interview. A reasonable

interpretation is that forthrightness by

the applicant is encouraged for the

interview.

Another regulation relied upon is 7

C.F.R. §273.2(f), which limits the

circumstances by which a worker certifying

an applicant's eligibility for food stamps

can verify the information given by the

applicant. Like 7 C.F.R. §273.2(e), this

regulation concerns application processing

by H.R.S. Hence, §273.2 of 7 C.F.R. is

entitled "Application processing."

Similarly, any reliance upon 7 C.F.R.

§273.2(£)(4) and related regulations

limiting the primary source of verification

by H.R.S. caseworkers to evidence provided

by the household is misguided.

Indeed, all of the subsections of

§273.2 have something in common with yet

another regulation relied upon by

Roberts v. Austin, 632 F.2d 1202, App. 1,

that is, 7 C.F.R. §273.16(e)(2).

Roberts v. Austin, id. at 1210, App. 24-26,

cites the regulation as indicating a

careful limitation of referrals’ for

prosecution to those "' cases where

individuals are suspected committing

fraud.'" The purpose of this regulation,

however, is to "encourage" such referrals

for prosecution. The interest expressed is

to ensure that significant fraud is

vigorously pursued. Hence, the regulation

continues by encouraging the referrals

"particularly if large amounts of food

stamps are suspected of being fraudulently

obtained or the individual is suspected of

committing more than one fraudulent act."

The intent here is clear: H.R.S. is to

especially refer for prosecution cases that

hurt the public purse the most. The public

purse and integrity of the Food Stamp

Program are the paramount concerns. There

is nothing in this regulation or any other

regulation to suggest that H.R.S. referrals

are the only route that eventual

prosecution may take. Here, the interests

of the State Attorney's Office and those of

this regulation coincide: the protection

of the public purse and the maintenance of

the integrity of a noble program.

In sum, the basis for the injunction

is regulations that simply nowhere

expressly limit the access of local law

enforcement to food stamp recipient files.

Instead, these regulations are intended to

primarily govern the exclusively internal

operations of H.R.S. Hence, the daily

operations of a Food Stamp issuing agency

are limited in their verification

procedures. Part 273 of 7 C.F.R., under

which all of the above regulations are

subsumed, is entitled "Certification of

Eligible Households," and the subsections

of Part 273 pertain to the exclusively

internal operations of the issuing agency.

In a rare divergence from this homogeneity,

7 C.F.R. §273.16(e) recognizes the

authority of a state court to disqualify an

individual from food stamp benefits "if t

court finds the individual guilty of civil

or criminal fraud." This disqualification

is "separate and apart from any action

taken by the State agency to disqualify the

individual through an administrative fraud

hearing." Id. In other words, the

regulations expressly recognize a _ pro-

cedure for disqualifying a _ food _ stamp

recipient -- that is, rendering the

recipient ineligible -- which is totally

outside of the regulations, i.e., the

state court system with its procedures

and authorities. One such authority is

the State Attorney's Office.

In contrast to this obvious regulatory

intent that the state criminal justice

system pursue food stamp fraud,

Roberts v. Austin, 632 F.2d 1202, App. 1,

would entirely preclude inquiries by the

State Attorney's Office in cases involving

corruption by caseworkers in HRS.

The Fifth Circuit and respondent-

plaintiffs have never adequately coped with

this argument. Roberts v. Austin, id. at

1211, App. 1, prohibits the release of a

recipient's file to the State Attorney

until H.R.S. ("the state agency" )

"determines that there is reason to suspect

fraud." This totally emasculates the

authority of the State Attorney to conduct

investigations in circumstances where a

H.R.S. worker is suspected of fabricating

or manipulating a recipient's file so that

food stamps are overissued or issued to a

fictitious recipient--with the 4H.R.S.

worker obtaining a pecuniary benefit there-

from. To the degree that H.R.S. workers

are corrupt, 2 there would never be a deter-

mination by H.R.S. that fraud is suspected

in a file. Furthermore, all state food

stamp agencies are not necessarily of the

magnitude and sophistication of H.R.S.

There may be state food stamp agencies that

lack the expertise or resources for the

specialization requisite to making a

determination that there is a reasonable

suspicion of fraud in a recipient's file.

A fortiori, petitioners hope that the

rendering of the primary prosecutorial

agency, constitutionally authorized by the

State of Florida, totally subservient in

its functions to a H.R.S. worker would

offend this Court's sensible concepts

regarding federal-state comity and _ the

integrity of a prosecutorial authority. It

is very, very doubtful that federal

legislation or regulations could have ever

intended such a total denuding of

prosecutorial authority.

That in front of the 92nd Congress in

Febriary, 19722, an H.E.W. employee spoke

of limited access to files in the Aid to

Families with Dependent Children Program

should not be seized to destroy the

authority of the State Attorney's Office to

inquire into the area of food stamps in

which there is suspected heavy

concentrations of fraudulent activity. The

authority of each State Attorney's Office

in Florida is quite broad, and, certainly,

information coming to the attention of such

an Office that the fraud rate among food

stamp recipients is likely as high as 40%

should not go unheeded. That such a level

of fraud may indicate H.R.S. worker

complicity and a probable enormous drain on

the public purse at a time when the

austerity of the economy otherwise con-

strains the public purse and simultaneously

increases the needs of low-income families

has enormous implications for public

policy.

Roberts v. Austin, Id. at 1213, App.

35 uses the terminology "fishing expedi-

tion" and cites Congressional language

disapproving of the harrassment of appli-

cants in the verification process of the

state food stamp = agency. Petitioners

wholeheartedly agree that no one should be

harrassed, nor should any blind fishing

expeditions be allowed. Harrassment and

fishing expeditions, however, end where the

legitimate authority of law enforcement

begins. A potential fraud rate of forty

percent (40%) in an area justifies law

enforcement's increased surveillance of

that area. As in automobile stops by the

police, See United States v. Martinez-

Fuerte, 428 U.S. 543 (1976), the actions of

the State Attorney's Office were directed

to a particular circumscribed area where

criminal activity was suspected to exist,

and it was not arbitrarily directed at

selected recipients. Instead, the inquiry

was directed at a category of recipients

bearing a rational nexus to the legitimate

functions of law enforcement.

Indeed, any supposed intrusion by the

State Attorney into any privacy of

recipients was de minimus. It was "no more

intrusive . .. than typical verification

procedures used by banks in approving loan

applicants or employers in considering job

applicants." Roberts v. Austin, Id. at

1214, App. 41 (Judge Hill, concurring

specially). Most of this same type of

information could have been gleaned by

police officers conducting a loose sur-

veillance in the recipients' neighborhood

and area of employment. The files were

being transferred from one State agency

(H.R.S.) to another state agency (State

Attorney's Office). It was, in essence, a

transfer of public documents. See also

Davis v. United States, 328 U.S. 580 (1946)

(access of officers to public documents).

And, the State Attorney, an elected offi-

cial constitutionally empowered by Florida

to enforce the laws of Florida, see Eagan

v. Demanio, 294 So.2d 639, certainly should

have as much access to recipients' files in

these circumstances as an auditor, see 7

U.S.C. §2020(a); 7 C.F.R. §272.1 (f£), ora

part-time worker of H.R.S., see 7 C.F.R.

§272.4 (e).

If the gulf between what the regu-

lations say and what respondent-plaintiffs

would like them to say is perceived by this

Court as logically traversible so as to

prohibit the access of the State Attorney's

Office to the files in its inquiry, then

petitioners submit that those reguiations

are incompatible with the ultimate purpose

of the Food Stamp Act, that is, to provide

nutrition for the truly needy, see

7 U.S.C. §§ 2011, 2014 (a). The State

Attorney's inquiry was successful in fer-

reting out fraud. As such, the regulations

would be contrary to the enabling legis-

lation, 7 U.S.C. § 2013, which authorizes

regulations necessary or appropriate for

the effective and efficient administration

of the program. See, e.g., N.Y. State

Department of Social Services v. Dublino,

413 U.S. 405, 419-20 (1973) (statute to be

interpreted so as to not prohibit States'

efforts toward statutory purpose).

The purpose of the Food Stamp Act

cannot be promoted where existing techni-

ques to ferret out fraud allow a fraud rate

as high as forty percent (40%). Any regu-

lations that perpetuate rampant fraud by

stifling otherwise legitimate attempts to

probe it should be struck down.

Petitioners, however, suggest that the

regulations need not be struck down in

that, contrary to Roberts v. Austin, 632

F.2d 1202, App. 1, they should not stifle

the State Attorney's attempts to probe

areas of suspected food stamp fraud. The

regulations do not prohibit such attempts.

Petitioners arguments, of course, are

not tantamount to suggesting that’ the

authority of the State Attorney's Office is

not without its parameters. As argued

above, the State Attorney should not be

free to arbitrarily select recipients'

files to harrass recipients. If this Court

interprets the regulations to further

impose disclosure restrictions on the State

Attorney's Office, then more precise pa-

rameters of State Attorney access should be

determined. The arguable alternatives

range from the most liberal, unlimited

access, to the most restrictive, access

only when referred a file by H.R.S. upon

the determination of H.R.S. that a reason-

able suspicion of fraud exists [expressly

"encouraged" not restricted in 7 C.F.R.

273.16 (e)(2)]. The Fifth Circuit has opted

for the latter, the most restrictive alter-

native. Yet there remains no clear nexus

between the regulations and this stifling

restrictive interpretation. Quite to the

contrary, as argued supra, public policy

overwhelmingly favors an _ interpretation

that allows for State Attorney access

outside of any H.R.S. determination. A

more reasonable interpretation, for

example, might track Branzburg v. Hayes,

408 U.S. 665, 699-701 (1972), and thereby

impose the prerequisite that there be a

nexus between a "general problem area"

within \ e purview of the State Attorney's

Office and the files sought, see 7 U.S.C.

§2020 (e)(8). Here, the perusal of files in

an area where the fraud rate was said to be

as high as forty percent (40%), thereby

constituting potential violations of Sec-

tion 409.325, Florida Statutes, certainly

justified the attempts of the State Attor-

ney's Office to determine "whether a crime

has been committed and who committed it,"

Branzburg v. Hayes, Id. at 701.

In sum, respondent-plaintiffs take an

“encouraging” regulation and attempt to

make it “restricting,” take a regulation

designed to assure at least one means of

investigating food stamp fraud and attempt

to make it exclusive, take regulations

targeted at the interview of food stamp

applicants and the verification process

within the food stamp state agency and

attempt to broaden them beyond belief, and

take A.F.D.C. provisions and attempt to

twist them into an interpretation that

restricts the access of the State Attor-

ney's Office to the records of H.R.S., a

state agency. Although there should be

reasonable limitations on the State Attor-

ney's functions, these incredibly strained

interpretations make a mockery of federal-

state comity and the legitimate authority

of ihe State Attorney's Office. The State

Attorney's Office by inquiring into a

general problem area of legitimate concern,

potential violations of Section 409.325,

Florida Statutes, is not only promoting

Florida policy, but also a federal policy

that the truly needy, not thieves, have

food stamp funds available to them.

Petitioners, therefore, pray that this

Court grant this petition so that the State

Attorney's Office may be freed from the

injunction, do its job, and thereby assist

in salvaging the Food Stamp Program.

FOOTNOTES

is This is not to suggest that corruption

in HRS is currently rampant. But that

there has been HRS worker prosecution in

Duval County does suggest the need for the

State Attorney to have this authority.

2. This is cited in Roberts v. Austin,

632 F.2d at 1211, App. 28, as "Establishing

Priorties among Programs Aiding the Poor,"

Hearing before the Senate Finance Com-

mittee, 92d Cong. Second Sess. at 149 (Feb.

1S, 1972).

Alice ROBERTS et al.,

Plaintiffs-Appellants,

Vv.

Edward T. Austin, individually

and in his official capacity as

State Attorney Fourth Judicial

Circuit, State of Florida et al.,

Defendants-Appellees.

No. 80-5384.

United States Court of Appeals,

Fifth Circuit

Unit B

December 15, 1980.

Mark Greenberg, Jacksonville Area

Legal Aid, Inc., Jacksonville, Fla., for

plaintiffs-appellants.

Stephen R. White, Asst. State's Atty.,

Jacksonville, Fla., for Austin, Atwater &

Saitta.

Leo Stellwager, Dist. Counsel, Dept.

of Health & Rehab. Services, Robert M.

Eisenberg, Jacksonville, Fla., for HRS,

David Pingree, et al.

Appeal from the United States District

App. l

Court for the Middle District of Florida.

Before HILL, KRAVITCH and HATCHETT,

Circuit Judges.

HATCHETT, Circuit Judge:

In this case we must interpret the

Food Stamp Act, 7 U.S.C. §§ 2011-2027, and

the regulations promulgated thereunder, to

determine congressional intent concerning

both the investigation of food stamp fraud

and the confidentiality to be accorded the

case files of food stamp recipients.

Appellants, food stamp recipients,

appeal a district court order denying a

preliminary injunction that would enjoin

both the state agency administering the

Food Stamp Program in Florida, the Depart-

ment of Health and Rehabilitative Services

(hereinafter HRS), and the State Attorney

for Florida's Fourth Judicial Circuit from

certain practices claimed to violate appell-

ants' statutory and constitutional rights.

The practices sought to be enjoined arise

App. 2

cut of an ongoing investigation of food

stamp fraud by the state attorney. The

state attorney subpoenaed and secured from

HRS the files of all food stamp recipients

who received at least $125 per month in

food stamps. The state attorney had no

reason to believe that any particular

recipient engaged in food stamp fraud. In

denying the injunction, the trial court

found the state attorney, pursuant’ to

7; Core 5 272.1(c),+ "directly connected

with enforcement of the Food Stamp Pro-

gram," so that HRS may release any

requested files absent such reason to

suspect fraud. Further, the trial court

found "no protected right of privacy in the

information furnished." Our interpretation

of the regulations is that they mandate a

showing of suspicion of fraud prior to

release by HRS of recipient files. The

Food Stamp Act also manifests a _ strong

congressional intent to maintain the con-

App. 3

fidentiality of recipient files. In

accordance with this interpretation, we

find that the proposed preliminary in-

junction satisfied the established require-

ments for granting an injunction. We

therefore hold that the trial court abused

its discretion, and we reverse the denial.

FACTS

Appellants, (hereinafter recipients)

and members of the class they seek to

represent, are “low-income individuals who

reside in the’ three-county area of the

Fourth Judicial Circuit, and who partici-

pate in the Food Stamp Program in Florida.

In early 1979, there were 3,117 individuals

participating in the Food Stamp Program in

Nassau County, 2,604 in Clay County, and

59,647 in Duval County. Recipient house-

holds participating in the Food Stamp

Program receive monthly coupon allotments

which may be used to purchase certain

grocery items. Congress created the Food

App. 4

Stamp Program to alleviate hunger and

malnutrition among the nation's low-income

households. 7 U.S.C. §2011.2 The Food

Stamp Program is a cooperative endeavor

between federal and state governments. The

federal government provides the entire

value of the food stamp coupons to state

agencies, along with fifty percent or more

of all administrative funds for program

operation. The state agencies (HRS in

Florida) agree to administer the program in

accordance with the Food Stamp Act, and the

regulations promulgated thereunder. 7

U.S.C. §2020.3

Income, expenses, and assets of appli-

cant households determine eligibility for

food stamps. Household income and expenses

fix monthly household coupon allotments.

HRS, through local food stamp offices,

receives and acts upon applications from

households seeking food stamps. For each

applicant household HRS maintains an in-

App. 5

dividual case file containing information

provided to the food stamp office by the

household and a case record of participa-

tion in the program.

Appellee, Austin, is the State Attor-

ney for the Fourth Judicial Circuit. The

Office of State Attorney is a constitu-

tional office created by Article 5, § 17 of

the Florida Constitution. The state attor-

ney, as the prosecuting attorney in each

judicial circuit, is responsible for the

prosecution of public assistance fraud,

which is a state criminal offense pursuant

to Fla. Stat. Ann. § 409.325.

In February of 1979, the State Attor-

ney for the Fourth Judicial Circuit initiat-

ed an investigation of food stamp recipients

in Nassau County, Florida. Assistant state

attorneys went to the Nassau County Food

Stamp Office and requested the food stamp

case files of all persons in the county who

were receiving a monthly food stamp coupon

App. 6

allotment of $125 per month or more. The

state attorney made this request without

any lawful process, subpoena or warrant.

The case files requested for investigation

were chosen solely because the affected

households received food stamp allotments

of $125 a month or more. No official of

HRS, and no representative of the state

attorney, had any reason to suspect that

particular members of the affected house-

holds had engaged in public assistance

fraud.

The supervisor of the Nassau County

Food Stamp Office gave all requested files

to the state attorney. Subsequently, HRS

requested to be served with a subpoena for

the files already reviewed by the state

attorney and for any future files. The

state attorney complied, and served a

subpoena mandating the production ef "any

and all applications, records, worksheets,

or any other pertinent information pertain-

App. 7

ing to any Nassau County food stamp re-

cipient." After HRS released the case

files, the state attorney reviewed the

files and filled out information sheets for

all affected households, recording each

household's source and amount of income,

resources, household composition, medical

expenses, rent or mortgage amounts, utility

costs, child support or alimony.

These information sheets were dis-

tributed to local police personnel. The

state attorney advised the police to con-

duct a criminal investigation and verify,

through standard criminal investigative

techniques, the information collected on

these forms. The state attorney asked the

police to contact neighbors, employers, and

others who might be familiar with the

household's circumstances to verify the

information previously provided to the Food

Stamp Program. The state attorney also

instructed the police not to disclose

App. 8

unnecessarily any of the information

obtained.

Over the next six months, an estimated

500 households in Nassau County were

subjected to criminal investigations. The

local police compared the information

obtained in the community with that which

applicants previously gave to the _ food

stamp office. The sole basis for

investigative targets was the amount of

food stamps received.

During the summer of 1979, the state

attorney initiated a substantially similar

investigation in Clay County. Without

requiring any showing or reason to suspect

fraud, HRS again turned over hundreds of

case files. In turn, the state attorney

disseminated this information to local

police for verification through criminal

investigation.

It remains the position of HRS that so

long as the state attorney provides a

App. 9

subpoena, HRS officials will release any

and all requested case files without regard

to whether there is any basis to suspect

affected households of fraud.

In district court, recipients asserted

that HRS's release of all requested food

stamp case files to the state attorney

without any reason to suspect individuals

of fraud violated the statutory rights of

recipients. Recipients base this statutory

claim on the Food Stamp Act and the

regulations promulgated thereunder. They

assert that the regulations prohibit HRS

from releasing file information to the

state attorney unless there is some reason

to suspect fraud, notwithstanding that the

state attorney may be "directly connected"

with the enforcement of the Act, within the

meaning of 7 C.F.R. § 272.1(c). Recipients

also claimed violation of their constitu-

tional rights to privacy, to freedom from

unreasonable search and seizure, and to due

App. 10

process. Recipients sought damages arising

from the release of the information and

investigative activities that have

occurred. Furthermore, recipients sought

declaratory and injunctive relief to

prevent HRS from releasing case files

without any basis to suspect individuals of

fraud, and to prevent the state attorney

from demanding access to food stamp case

files in the absence of a proper referral

of the case by HRS, or absent a search

warrant.

The state attorney justified access to

the food stamp files on the basis of the

general investigative power of the office

and because the office of state attorney is

"directly connected" with the enforcement

of the Act, pursuant to 7 C.F.R. 272.1(c).

The trial court, following a hearing

and a finding of jurisdiction pursuant to

28 U.S.C. § 1337, denied recipients' motion

for preliminary injunction. The trial

App. 11

court concluded that recipients were not

substantially likely to prevail on their

claim of violation of the Food Stamp Act

and its regulations, and that they were not

substantially likely to prevail on their

claim of deprivation of constitutional

rights. The trial court addressed the

regulatory question first and concluded

that because the state attorney is,

pursuant to 7 C.F.R. § 272.1(c), "directly

connected" with enforcement of the Food

Stamp Act, HRS may release recipient files

to him without regard to whether the

recipients are suspected of committing

fraud. The trial court obviously determined

that such a conclusion was mandated by

several factors, the most critical factor

being the language contained in the Florida

Food Stamp Application Form. That language

states: "I authorize Division of Family

Services and the Division of Public Assist-

ance Fraud to verify any information given

App. 12

herein and to make any inquiry of past or

present employers and records and financial

or otherwise." Further, such language

complies with Fla. Stat. Ann. 11.50(b).

Additionally, the trial court noted that

Fla. Stat. Ann. 409.355 makes public both

the names of recipients of public assist-

ance and the amount of assistance received.

Finally, the trial court found that regula-

tory references, most notably 7 C.F.R §

273.16(e)(2),* "encouraging the referral of

suspected fraud cases to the State Attorney

do not require the conclusion that the

State Attorney may not act other than in

referred cases."

As to the constitutional question, the

trial court found that the Food Stamp Act

provided certain protections for

recipients' privacy, and following Plante v.

Gonzales, 575 F.2d 1119 (5th Cir. 1978),

cert. denied, 439 U.S. 1129, 99 S.Ct. 1047,

59 L.Ed.2d 90 (1979), balanced these

App. 13

privacy protections against the governmental

interest in having unimpeded access to the

files. The trial court determined that:

there is a substantial governmental

and public interest in the restricted

disclosure of this information. The

term restricted is used because there

is no suggestion or contention that

there is either desire or intention to

make this information general public

information or to extend its use or

disclosure to other than those

‘directly connected' with and who

therefore have a legitimate official

interest in its use. The governmental

and public interest in such restricted

disclosure is served in this use

because fraud in tthe program is

thereby curtailed, benefits are

limited to those for whom they were

intended and the public perception of

the Food Stamp Program as a whole is

changed from one described derisively

as having recipients driving up in

late model Cadillacs to pick up their

food stamps to one recognized for

serving the laudible purpose for which

it was created. That there are

instances of fraud should come as no

surprise to anyone, but certainly the

program should not be permitted to be

publicly typified by those who abuse

it. To this extent the government and

the public have a vital interest in

ferreting out those who do abuse the

program and without access to the

applications and ieports, effective

detection of fraud would be virtually

impossible.

The trial court concluded that because

App. 14

recipients "had no protected privacy right

in the information furnished," recipients

would not face irreparable harm from HRS's

planned release of information or from the

state attorney's criminal investigations.

ISSUES

Recipients ask us to determine:

1. whether the trial court erred in

finding that the state attorney can sub-

poena and secure records of food stamp

recipients, where the affected recipients

are not suspected of fraud, because the

state attorney is "directly connected" with

the enforcement of the Food Stamp Program;

and,

2. whether the trial court erred in

holding that HRS's release of recipients’

case files to the state attorney without

reason to suspect fraud did not violate the

recipients' constitutinal right to privacy.

App. 15

STANDARD OF REVIEW

As we recently stated in Shamloo v.

Miss. State Bd. of Trustees, Etc. 620 F.2d

516, 524 (5th Cir. 1980):

This court clearly established the

requirements for granting a prelimin-

ary injunction in Canal Authority of

Florida v. Callaway, 489 F.2d 567 (5th

Cir. 1974) as follows:

(1) a substantial likelihood that

plaintiff will prevail on the

merits, (2) a substantial threat

that plaintiff will suffer ir-

reparable injury if the injunc-

tion is not granted, (3) that

the threa tened injury to plain-

tiff outweighs the threatened

harm the injunction may do to

defendant, and (4) that granting

the preliminary injunction will

not disserve the public interest.

Id. at 572. The grant or denial of a

preliminary injunction rests in the discre-

tion of the district court. Johnson v.

Radford, 499 F.2d 115 (5th Cir. 1971). We

must determine whether the district court

abused its discretion as bounded by the

App. 16

four prerequisites of Canal Authority.

Farshy v. Kagan, 585 F.2d 749 (Sth Cir.

1978).

The above four requirements considered

by the trial court are mixed questions of

law and fact and "[o]n review the district

court's findings of fact are to be upheld

unless ‘clearly erroneous.' Fed.R.Civ.P.

52(a). The district court's conclusions of

law [however] are subject to broad review

and will be reversed if incorrect."

Buchanan v. United States Postal Service,

508 F.2d 259, 267 n. 24 (Sth Cir. 1975).

DISCUSSION

I. The Regulatory Claim

A. Congressional Intent

[1] Resolution of this issue turns

upon our construction of the Food Stamp Act

and the regulations thereunder. As noted

by the Supreme Court, “our task is to

interpret the words of these statutes [and

App. 17

regulations] in light of the purposes

Congress sought to. serve." Chapman v.

Houston Welfare Rights Org., 441 U.S. 600,

608, 99 S.Ct. 1905, 1911, 60 L.Ed.2d 508

(1979).

The trial court found "that the State

Attorney is within that category of persons

‘directly connected' with the enforcement

of the Food Stamp Act and is entitled to

access to the recipient files for use in

the enforcement of the Act." The trial

court interpreted a finding of "directly

connected" to be a finding of a right to

complete access to recipient files. Such

an interpretation ignores the possibility

that those "directly connected" with the

administration or enforcement of the Act

might be restricted in their use and dis

closure of program information. We reject

the trial court's approach as too limited

when the entire Act and regulatory struc-

ture is considered.

App. 18

When a household applies for food

stamps, the completed application contains

a large amount of personal information

concerning the household's circumstances.

This information is reviewed by the food

stamp certification caseworker, in an

“official and confidential discussion of

household circumstances," with the appli-

cant's "right of privacy" protected during

this interview. 7 €.9.8. 8 273.2(e).°

Verification is the process of con-

firming the household statement about fact-

ors of eligibility through either documen-

tary sources, collateral (third-party)

contacts, or a home visit. The areas of

verification and the means of verification

are not left to the discretion of the

certification worker. Pursuant to 7 C.F.R.

§ 273.2(f),° in the absence of consent from

the household, a certification worker is

not free to verify any factor of eligi-

bility or to make contacts with third

App. 19

persons in order to verify information

provided by the household.

The federal regulations governing

verification expressly distinguish between

factors of eligibility for which verifica-

tion is mandatory (gross non-exempt income,

alien status, utility and medical

expenses), and all other factors of

eligibility. For non-mandatory factors,

the state agency, here HRS, can only

require verification if the household's

assertions are "questionable." 7 C.F.R. §

273.2(£)(1) and (2).’ ‘Thus, if the

caseworker has no reason to believe that

the household's assertions are questionable

regarding a non-mandatory factor, household

composition for example, the caseworker

cannot require verification of this factor.

7 C.F.R. § 273.2(£)(2) and (i).®

Where verification is allowed or

required, the nature of verification is not

left to caseworker discretion. The primary

App. 20

source of verification is documentary

evidence provided by the household. 7

C.F.R. § 273.2 (£)(4).? If the household

is unable to provide acceptable documentary

verification, the caseworker may make use

of a collateral contact. The caseworker,

however, is first required to ask the

household to name and agree to a mutually

acceptable collateral contact. 7 C.F.R. §

273.2(£)(5).>° If the household unreason-

ably refuses to provide acceptable col-

lateral contact verification, the appli-

cation can be rejected, or the case termin-

ated. The caseworker, however, cannot

proceed to contact a third party for verifi-

cation without the permission of the house-

hold. We base this view of 7 C.F.R. §

273.2(b)(5) on the Department of

Agriculture comments that accompanied

promulgation of this section. Many

commentors recommend that the regulations

prohibit the use of a collateral contact

App. 21

without the express written consent of the

household. Since the proposed regulations

clearly state that the state agency must

rely on the household to provide the name

of a collateral contact, the Department

believes the recommended change is

unnecessary. 43. Fed. Reg. 47856,

(Tuesday, October 17, 1978).

When a collateral contact is

necessary, the regulations establish a

balance between the state agency's right to

ensure that only eligible persons receive

food stamps and the household's right to

maintain its privacy and dignity. Congress

recently expressed its awareness of this

dilemma and emphasized the need to ensure

protection of recipient privacy rights.

The legal barriers that need to be

lowered, or in some instances withdrawn

entirely, are substantial, appropriately so

in light of the privacy considerations

involved and the danger of abuse of con-

App. 22

fidential information ffor illegitimate

purposes by both federal and state food

stamp personnel. The Program need for

certain information is great, but it must

be carefully balanced by the need to pro-

tect needy individuals from having their

privacy bartered away in order to assuage

their hunger. Existing protections should

not be reduced without careful considera-

tion and without the substitute of other

meaningful safeguards. The committee's bill

attempts to achieve this balanced approach

to disclosure of relevant wage and benefit

information. H.R. Rep. 96-788, Food Stamp

Act Amendments of 1980, at 106.

The balance between the household's

privacy rights and the need to investigate

household statements to ensure accuracy

shifts after there is reason to suspect the

household has provided incorrect informa-

tion to the Food Stamp Program. This

suspicion may arise in a number of ways.

App. 23

The recipient may submit inconsistent or

questionable information during regular

redeterminations of eligibility; an infor-

mant may provide information which contra-

dicts representations made by the house-

holds; regular computer checks of informa-

tion given to the Aid to Families with

Dependent Children program or the Social

Security program may reveal inconsistent

reporting. At any point when the informa-

tion provided by the household to the Food

Stamp Program appears questionable, the

state worker can require an additional

document or verification and, if that

verification is inadequate, a collateral

contact. 7 C.F.R. § 273.2(f). If the

information continues to be suspect, or

the household refuses to cooperate, a fraud

investigation may be appropriate.

The regulations authorize referral to

state prosecuting authorities in cases

where individuals are suspected of commit-

App. 24

ting fraud. 7 C.F.R § 273.16(e)(2).7+ This

regulation is the sole reference in the

Food Stamp Act and regulations providing a

case file to a state prosecutor; and 7

C.F.R. § 273.16(e)(2) carefully limits

referral to "cases where individuals are

suspected of committing fraud." The careful

limitation on information disclosure

throughout the regulatory structure, the

_qualified language of 7 C.F.R. § 273.16

(e)(2), and the absence of any reference to

providing case files to prosecuting

authorities anywhere else in the regulatory

structure, leads to the conclusion that the

state agency cannot release a file to a

prosecutor until the agency determines

there is reason to suspect fraud. Further

we find it relevant that § 273.16(e)(2)

encourages referral only for "prosecution,"

not investigation. This is not to say, of

course, that, upon referral, the state

attorney cannot make use of certain

App. 25

investigative tools, like the grand jury.

Clearly, Congress intended to

establish a structure where the_ state

agency can contact third persons to verify

information, and engage in investigations,

only after the household has_ provided

questionable information. After establish-

ing such a careful structure, Congress did

not intend that it be circumvented by

allowing the agency to turn over the files

to the prosecutor for criminal investiga-

tion at any time, without regard to whether

the household has engaged in questionable

behavior. Given this regulatory structure,

and the clear intent of Congress, we must

disagree with the trial court, since it

effectively held that by the simple

expedient of turning over all case files to

a state attorney, HRS may accomplish

indirectly the verification which it is

barred from doing by the federal food stamp

regulations.

App. 26

In resolving any ambiguity in the

regulatory structure at the Food Stamp

Program, it is useful to examine the

Depart ient of Health and Human Resources'

interpretation of the substanitally similar

"use or disclosure" provision of the Aid to

Families with Dependent Children Program,

42 U.S.C. §§ 601-662. Health and Human

Resources, in administering the AFDC pro-

gram, has interpreted its "use or dis-

closure" provision in a manner which

clearly forbids the indiscriminate release

of case files by a state agency to a state

prosecutor without any basis to suspect

fraud. Health and Humen Resources

advised Congress that:

although a well-run state welfare

program could turn up most cases of

welfare fraud, it is not possible for

the state or local welfare agency to

identify all such cases. Where law

enforcement officials identify a case

of suspected welfare fraud which has

gone undetected by the welfare agency

and wish to take action there is no

federal statutory provision or HEW

[HHR} regulation which prevents a

statewide welfare agency from disclos-

App. 27

ing information bearing on the ques-

tion of welfare fraud to those

officials. Disclosure of information

unrelated to the suspected fraudulent

conduct is, of course, both unneces-

sary and undesirable, and the welfare

agency therefore has the responsibili-

ty to make available from the case

f'le only such information as is

n-eded for the investigation of the

fraudulent activity in question.

Also, it would be administratively

disruptive and a violation of the

legislatively mandated principle of

confidentiality to permit unlimited

access to all case files when the law

enforcement officials have no specific

instance of welfare fraud in mind, but

merely suspect that such fraud exists

generally in the program.

"Establishing Priorities among Programs

Aiding the Poor," Hearing before the Senate

Finance Committee, 92d Cong. Second Sess.

at 149 (Feb. 15, 1972).

It is also worth noting that 45 C.F.R.

§ 235.110, the Health and Human Resources

equivalent of Agriculture's 7 C.F.R.

§ 273.16(e), provides for referral to law

enforcement officials in situations "in

which there is valid reason to suspect that

fraud has been practiced." In United States

App. 28

v. McDaniels, 370 F.Supp. 293 (E.D.La.

1973), the court interpreted this provision

as barring referral of a case file when

there is no basis to suspect fraud. There,

the court stated that:

The HEW Regulations with respect to

suspected fraud contemplated some

preliminary investigation by _ the

agency before a case is turned over to

a law enforcement officer. Each state

plan must provide methods and criteria

for identifying situations in which a

question of fraud may exist. That

procedure must be developed _§ for

referral to law enforcement officers

of "situations in which there is valid

reason to suspect that fraud has been

practiced" implies that cases where

"valid reason" does not exist will not

be referred. This conclusion is

buttressed by the express provision

that the state agency plan (not its

law enforcement program) must provide

"For methods of investigation of

situations in which there 1s a ques-

tion of fraud .

370 F.Supp. at 296.

This prohibition on blanket release of

files by the state agency, which exists in

the AFDC Program, is precisely what HRS

denies exist in the Food Stamp Program.

There is no reason, however, to believe

App. 29

that Congress intended any less protection

for the low-income households who receive

federal food assistance than for the

low-income households who receive federal

financial assistance. Indeed, millions of

households receive both food stamps and

AFDC benefits, and pursuant to 7 C.F.R. §

273.2(3),+4 state agencies are required to

develop procedures for a single application

and interview when a household is eligible

for both programs. Much of the information

regarding household income resources, and

composition is necessary for both

eligibility determinations. It is inconsis-

tent to say that Congress intended to bar

the state agency administering the AFDC

Program from giving a prosecuting authority

the AFDC file without valid reason to

suspect fraud, but intended to aliow the

state agency to turn over the food stamp

file without restriction. We need not

interpret either of the regulations in a

App. 30

manner which results in the same congres-

sional language leading to inconsistent

protections. Accordingly, we find that

Congress intended the state agency adminis-

tering the Food Stamp Program to turn over

case files to a state prosecutor only when

there is valid reason to suspect fraud in

the particular household.

Contrary to the trial court's holding,

a finding that the state attorney is

"directly connected" with the enforcement

of the Food Stamp Act does not compel the

conclusion that HRS may release all files

of all persons receiving food stamps to

that state prosecutor. The state attorney

contends he gets his power to investigate

because he is, pursuant to 7 C.F.R. §

272.1(c), “directly connected" with the

enforcement of the Act; the state attorney

then disassociates himself from the other

regulations limiting investigative

authority. If the state attorney is

App. 31

"directly connected" with enforcement

of the Act, then he is also bound by those

provisions restricting his authority to

investigate.

The trial court, in concluding that

HRS could refer case files to the state

attorney for investigation of their

eligibility, expressly relied upon aspects

of state law and practice. The trial court

relied upon a waiver provision of Florida's

food stamp application. It also relied

upon Fla. Stat. Ann. § 409.355 which

provides, in part, that "the lists of names

of all persons who have received public

assistance payments and the amount of such

payments are a matter of public record."

Federal regulations clearly prohibit

HRS from requiring verification of a number

of factors of eligibility when’ the

applicant has not provided "questionable"

information. 7 C.F.R. § 273.2(f£)(1),(2).

Federal regulations prohibit the require-

App. 32

ment of collateral contacts when documen-

tary verification is adequate, and prohibit

the state agency from engaging in

collateral contacts absent the household's

consent. 7 Cc. FR. § 273.2 (£)(4),(5).

This limitation on agency discretion

and the verification process demonstrates

an awareness by Congress and the Department

of Agriculture that, absent carefully

structured limits on the state agency's

ability to verify, the verification process

can be used to harass or delay eligibility

determinations for applicant households.

The Food Stamp Amendments of 1980 broadened

the rights of state agencies to verify

information provided by § "error-prone"

households. In developing a model by which

those households which are more subject to

error are also subject to increased verifi-

cation, Congress expressly rejected the

option of allowing states to verify any

factors of eligibility for any or all

App. 33

households. In rejecting this option, the

House Agriculture Committee noted "the

carefully maintained balance between verifi-

cation that reduces costly program error

and verification that harasses applicants

and prevents participation without

impacting on error. . ." H.R. Rep. 96-788,

Food Stamp Amendments of 1980, at 98.

The Food Stamp Act also expressly

prohibits a state agency participating in

the Food Stamp Program from levying addi-

tional eligibility requirements for applicant

households. 7 U.S.C. § 2020(e)(5).?%

Additionally, the Food Stamp Act expressly

requires the state agency to undertake

certification of applicant households in

accordance with the procedures prescribed

in the federal regulations. 7 U.S.C. §

2020(e)(6).+4

It is not necessary for us to resolve

whether Florida law and practice conflict

with federal law. The question of the

App. 34

constitutionality of Florida law and

practice is not specifically before us.

Our only necessary task is to interpret the

Act and accompanying regulations in view of

the purposes Congress sought to serve.

This we have done. We do note that a court

does not give intent to congressional

purpose by reference to state law and

practice.

Our interpretation of the Act and

regulations results in a finding that HRS

cannot release files to a state prosecutor

in the absence of a basis to suspect fraud.

Such an interpretation in no way impedes

the state attorney, a constitutionally

authorized body, from investigating fraud.

Our interpretation merely prohibits’ the

state attorney from conducting a fishing

expedition in food stamp files. Whenever

the state attorney has reasonable suspicion

to suspect fraud in a particular case file,

he may request that file and conduct a

App. 35

normal fraud investigation. The state

attorney may also conduct normal fraud

investigations of "those individuals

suspected of committing fraud," referred to

the state attorney by HRS, pursuant to 7

C.F.R. § 273.16(e)(2).

Accordingly, there is a substantial

likelihood that recipients will prevail on

the merits of their regulatory claim.

Further, the injunction will not harm

either HRS or the state attorney. Nor will

the injunction be adverse to the public

interest. The injunction will not alter

the normal process of investigation and

prosecution of food stamp fraud.

B. Irreparable Harm [2] AS

mentioned, the trial court determined "from

the language of 7 C.F.R. § 272.1(c), that

the legislature intended to provide sore

degree of confidentiality of the personal

information of the food stamp recipients by

preventing general public disclosure or

App. 36

disclosure to persons not directly

connected with the program.

We agree with the trial court that the

Act and accompanying regulations give

recipients statutory protection from

disclosure of confidential information. As

such, recipients possess a legitimate

expectation that the information will be

kept confidential. Certainly, recipients

do not legitimately expect local police

officers to peruse their food stamp files.

This court has held that "[wjhen a

legitimate expectation of privacy exists,

violation of privacy is harmful without any

concrete consequential damages. Privacy of

personal matters is an interest in and of

itself, protected constitutionally, as

discussed above, and at common law."

Plante v. Gonzalez, 575 F.2d 1119, 1135

(Sth Cir. 1978), cert. denied, 439 U.S.

1129, 99 S.Ct. 1047, 59 L.Ed.2d 90 (1979).

App. 37

The trial court, therefore, erred in

finding no irreparable harm.

II. The Constitutional Claim

Recipients assert that HRS's release

of their food stamp files to the state

attorney without reason to suspect fraud

violated their constitutional right to

privacy.

This court has a policy of deciding

cases on the narrowest legal grounds avail-

able. Shamloo v. Miss. State Bd. of

Trustees, Etc., 620 F.2d 516 (Sth Cir.

1980); Penthouse International Ltd.

v. McAuliffe, 610 F.2d 1353 (Sth Cir.

1980). This policy is particularly

applicable where, as here, constitutional

questions are involved. As Justice

Frankfurter wrote, "[i]f there is. one

doctrine more deeply rooted than any other

in the process of constitutional

adjudication, it is that we ought not to

pass on questions of constitutionality

App. 38

unless such adjudication is unavoidable."

Spector Motor Service v. McLaughlin, 323

U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed.

101 (1944).

In this case, recipients seek reversal

of a denial of a motion for preliminary

injunction. Our holding concerning recip-

ients' regulatory claim is sufficient to

reverse the denial. Consequently, we need

not decide the constitutional claim.

CONCLUSION

[3] The trial court abused its dis-

cretion in denying the preliminary injunc-

tion. There is a substantial likelihood

that recipients will prevail on the merits.

Based on Plante v. Gonzalez, recipients

have suffered irreparable injury and will

continue to suffer injury unless’- the

injunction is granted. Granting the

injunction will not be adverse to the

public interest; nor will granting the

App. 39

injunction harm either HRS or the state

attorney.

Accordingly, the trial court's order

denying the preliminary injunction is

vacated, the judgement is reversed, and the

cause is remanded to grant a preliminary

injunction, consistent with this opinion,

enjoining HRS from releasing food stamp

files to the state attorney absent any

basis to suspect that the = affected

households have committed fraud.

REVERSED AND REMANDED.

JAMES C. HILL, Circuit Judge,

concurring specially:

I concur specially in the result

reached by the majority but wish to point

out several troublesome aspects of the case

and the majority's handling of it. The

appellees have argued persuasively that

there is a need to verify information

supplied by food stamp recipients to

App. 40

program administrators in Florida by

suggesting in their brief that fraud may be

involved in as many as 40 percent of all

food stamp cases. The type of verification

that appellees sought to conduct was fairly

standard; ostensibly, it was no more

intrusive or violative of privacy than

typical verification procedures used by

banks in approving loan applicants or

employers in considering job applicants.

While such a procedure might reveal fraud,

or even deter fraud, I would not conclude,

as does the majority, that the households

whose entitlements were being verified

“were subjected to criminal investigation,"

ante, at 1205, 1206.

Although it would seem that a

verification procedure such as that urged

by appellees would ultimately benefit those

persons truly in need of food stamps and

legally entitled to them,” it is clear that

the desirability of such a procedure is not

App. 41

an issue for our determination. Our func-

tion is to determine whether, under the

laws passed by Congress and under the

regulations properly promulgated by the

various administrative agenc.es, this type

of verification procedure can be under-

taken. I conclude, along with the majority,

see ante, 1208-1211, that Congress through

the Food Stamp Act, 7 U.S.C. §§ 2011-2027

(1976), and the Department of Agriculture

though its regulations, e.g. 7 C.F.R. § 272

(1979), have precluded the action that

appellees seek to take.

The results reported to us at oral

arguments, see note 1 supra, suggest that

further study of the legislative policy

involved in this case is warranted. But if

another course is to be chosen, the fine

men and women who have been elected to

represent the people are quite competent to

the task. The judiciary should neither

assume the responsibility nor usurp au-

App. 42

thority not delegated to it. See

Wilson v. First Houston Investment Corp.,

566 F.2d 1235, 1244 (5th Cir. 1978) (Hill,

J. dissenting).

App. 43

FOOTNOTES

7 C.F.R. 272.1(c) provides:

closure of information obtained from food

stamp applicant households, exclusively for

the Food Stamp Program, shall be restricted

to ersons directl connected

with the administration Or enforcement

of the provisions of the Food Stamp Act or

regulations, or e 00 istribution

Programs as defined in Part 283 of this

Subchapter, or with other Federal or

Federally aided, means-tested assistance

programs such as Title IV-A (AFDC), XIX

(Medicaid), or XVI (SSI), or with general

assistance programs that are subject to the

joint processing requirements specified in

§ 273.2(3)(2). (raphasis added. |

(2) If there is a written request by

a responsible member of the household, its

currently authorized representative, or a

person acting on its behalf to review

material and information contained in its

casefile, the material and information

contained in the casefile shall be made

available for inspection during normal

business hours. However, the State agency

may withhold confidential information, such

as the names of individuals who have

disclosed information about the household

with the household's knowledge, or the

nature or status of pending criminal

prosecutions. [Emphasis added. ]}

2. 7 U.S.C. § 2011 provides:

It is hereby declared to be the policy

of Congress, in order to promote the

App. 44

general welfare, to safeguard the health

and well-being of the Nation's population

by raising levels of nutrition among low-

income households. Congress hereby finds

that the limited food purchasing power of

low-income households contributes to hunger

and malnutrition among members of such

households. Congress further finds that

increased utilization of food in establish-

ing and maintaining adequate national

levels of nutrition will promote the dis-

tribution in a beneficial manner of the

Nation's agricultural abundance and will

strengthen the Nation's agricultural

economy, as well as result in more orderly

marketing and distribution of foods. To

alleviate such hunger and malnutrition, a

food stamp program is herein authorized

which will permit low-income households to

obtain a more nutritious diet through

normal channels of trade by increasing food

purchasing power for all eligible house-

holds who apply for participation.

3. 7 U.S.C. § 2020 provides, in pertinent

part:

(a) The State agency of each

participating State shall assume

responsibility for the certification of

applicant households and for the issuance

of coupons and the control and

accountability thereof. There shall be

kept such records as may be necessary to

ascertain whether the program is being

conducted in compliance with the provisions

of this Act and the regulations issued

pursuant to this Act. Such records shall

be available for inspection and audit at

any reasonable time and shall be preserved

for such period of time not less than three

years, as may be specified in the regula-

tions issued pursuant to this Act.

a ee

App. 45

(d) The State agency (as defined in

section 3(n)(1) of this Act [7 U.S.C.

§ 2012 (n)(1)]) of each State desiring to

participate in the food stamp program shall

submit for approval a plan of operation

specifying the manner in which such program

Will be conducted within the State in every

political subdivision.

(e) The State plan of operation

required under subsection (d) of this

section shall provide, among such other

provisions as may be required by regulation

(3) that the State agency’ shall

thereafter promptly determine the eligibili-

ty of each applicant household by way of

verification only of income other than that

determined to be excluded by section 5(d)

of this Act [7 U.S.C. § 2014(d)] and such

other eligibility factors as the Secretary

determines to be necessary to implement

sections 5 and 6 of this Act [7 U.S.C.

§§ 2014, 2015], so as to complete certifica-

tion of and provide an allotment retroac-

tive to the period of application to any

eligible household not later than thirty

days following its filing of an applica-

tion;

zk kk

(5) the specific standards to be used

in determining the eligibility of applicant

households which shall be in accordance

with sections 5 and 6 of this Act [7 U.S.C

§§ 2014, 2015] and shall include no ad-

ditional requirements imposed by the State

agency;

(6) that (A) the State agency shall

undertake the certification of applicant

households in accordance with the general

procedures prescribed by the Secretary in

the regulations issued pursuant to this

Act;

App. 46

zk kk

(8) safeguards which limit the use or

disclosure of information obtained from

applicant households to persons directly

connected with the administration or en-

forcement of the provisions of this Act or

the regulations issued pursuant to this

Act.

(f) To encourage the purchase of

nutritious foods, the Secretary’ shall

extend the expanded food and nutrition

education program to the greatest extent

possible to reach food stamp program partic-

ipants. The program shall be further

supplemented by the development of single

concept printed materials, specifically

designed for persons with low-reading and

comprehension levels, on how to buy and

prepare more nutritious and economical

meals and on the relationship between food

and good health.

(g) If the Secretary determines that

in the administration of the food stamp

program there is a failure by a State

agency to comply with any of the provisions

of this Act, the regulations issued pur-

suant to this Act, or the State plan of

operation submitted pursuant to subsection

(d) of this section, the Secretary shall

immediately inform such State agency of

such failure and shall allow the State

agency a specified period of time for the

correction of such failure. If the State

agency does not correct such failure within

that specified period, the Secretary may

refer the matter to the Attorney General

with a request that injunctive relief be

sought to require compliance forthwith by

the State agency and, upon suit by the

Attorney General in an appropriate district

court of the United States having jurisdic-

tion of the geographic area in which the

State agency is located and a showing that

App. 47

noncompliance has occurred, appropriate

injunctive relief shall issue.

(h) If the Secretary determines that

there has been negligence or fraud on the

part of the State agency in the certifica-

tion of applicant households, the State

shall, upon request of the Secretary,

deposit into the Treasury of the United

States, a sum equal to the face value of

any coupon or coupons issued as a result of

such negligence or fraud.

(i) Notwithstanding any other provi-

sion of law, the Secretary and the Secre-

tary of Health, Education, and Welfare

shall develop a system by which (1) a

single interview shall be conducted to

determine eligibility for the food stamp

program and the aid to families with depen-

dent children program under part A of title

IV of the Social Security Act [42 U.S.C. §§

601 et. seq.]; (2) households in which all

members are recipients of supplemental

security income shall be permitted to apply

for participation in the food stamp program

by executing a simplified affidavit at the

social security office and be certified for

eligibility utilizing information contained

in files of the Social Security Administra-

tion; (3) households in which all members

are included in a federally aided public

assistance or State or local general assis-

tance grant shall have their application

for participation in the food stamp program

contained in the public assistance or

general assistance application form; and

(4) new applicants, as well as households

which have recently lost or been denied

eligilility for public assistance or gener-

al assistance, shall be certified for

participation in the food stamp program

based on information in the public assis-

tance or general assistance case file to

App. 48

the extent that reasonably verified informa-

tion is available in such case file.

(j) The Secretary, in conjunction

with the Secretary of Health, Education,

and Welfare is authorized to prescribe

regulations permitting applicants for and

recipients of social security benefits to

apply for food stamps at social security

offices and be certified for food stamps

eligibility in such offices in order that

the application and certification for food

stamp assistance may be accomplished as

efficiently and conveniently as possible.

(k) Subject to the approval of the

President, post offices in all or part of

the State may issue, upon request by the

State agency, food stamps to eligible

households.

4. 7 C.F.R. 273.16(e)(2) provides:

(e) Court imposed disqualifications.

(2) State agencies are encouraged to

refer for prosecution under State or local

fraud statutes those individuals suspected

of committing fraud, particularly if large

amounts of food stamps are suspected of

being fraudulently obtained or the in-

dividual is suspected of committing more

than one fraudulent act. The State agency

shall confer with its legal representative

to determine the types of cases which will

be accepted for possible prosecution.

State agencies shall also encourage State

and local prosecutors to recommend to the

courts that a disqualification penalty as

provided in section 6(b) of the Food Stamp

Act be imposed in addition to any other

civil or criminal fraud penalties.

{Emphasis added. ]

App. 49

5. 7 C.F.R. 273.2(e) provides, in

pertinent part:

The interview shall be conducted as an

official and confidential discussion of

household circumstances. The applicant's

right to privacy shall be protected during

the interview. Facilities shall be adequate

to preserve the privacy and confidentiality

of the interview.

6. 7 C.F.R. § 273.2(f£) provides, in

pertinent part:

(f) Verification. Verification is

the use of third-party information or

documentation to establish the accuracy of

statements on the application.

(1) Mandatory verification. State

agencies shall verify the following informa-

tion prior to certification for households

initially applying:

(1) Gross nonexempt income .

(ii) Alien status .

(iii) Utility expenses .

(iv) Medical expenses .

as 7 C.F.R. § 273.2(£)(2) provides, in

pertinent part:

(2) Verification of questionable

information. With the exception of liquid

resources and loans State agencies shall

verify all other factors of eligibility

prior to certification only if ey are

estion e an affect a househo s

eligibility or enefit evel. Procedures

for verifying loans and liquid resources

are described in paragraph (3) of this

section. To be considered questionable, the

information on the application must be

App. 50

inconsistent with statements made by the

applicant, inconsistent with other informa-

tion on the application or previous applica-

tions, or inconsistent with information

received by the State agency. When deter-

mining if information is questionable, the

State agency shall base the decision on

each household's individual circumstances.

A household's report of expenses which

exceed its income may be grounds for a

determination that further verification is

required. However, this circumstance shall

not, in and of itself, be grounds for a

denial. The State agency shall instead

explore with the household how it is manag-

ing its finances, whether the household

receives excluded income or has resources,

and how long the household has managed

under these circumstances. Procedures

described below shall apply when informa-

tion concerning one of the following eligi-

bility requirements is questionable:

{Emphasis added. ]

8. 7 C.F.R. § 273.2(£)(2)(i) provides:

(i) Household composition. If

questionable, State agencies shall verify

any factors affecting the composition of a

household such as household size and board-

er status. However, due to the difficulty

in verifying whether or not a group of

individuals customarily purchases and

prepares meals together and, therefore,

constitutes a household, State agencies

shall generally accept the household's

statement regarding food preparation and

purchasing. [Emphasis added. ]

9. 7 C.F.R. § 273.2(£)(4) provides:

App. 51

(4) Sources of verification. (i)

Documentary evidence. State agencies shall

use documentary evidence as the primary

source of verification. Documentary evi

dence consists of a written confirmation of

a household's circumstances. Examples of

documentary evidence include wage stubs,

rent receipts, and utility bills. Although

documentary evidence shall be the primary

source of verification, acceptable verifica-

tion shall not be limited to any single

type of document and may be obtained

through the household or other source.

Whenever documentary evidence cannot be

obtained, State agencies shall use alter-

nate sources of verification such as

collateral contacts and home visits.

(ii) Collateral contacts. A collateral

contact is a verbal confirmation of a

household's circumstances by a _ person

outside of the household. The collateral

contact may be made either in person or

over the telephone. The acceptability of a

collateral contact shall not be restricted

to a particular individual but may be

anyone that can be expected to provide an

accurate third-party verification of the

household's statements. Examples of accept-

able collateral contacts are employers,

landlords, social service agencies, migrant

service agencies, and neighbors of the

household.

(iii) Home visits. Home visits shall

be used as verification only if documentary

evidence cannot be obtained, and the visit

is scheduled in advance with the household.

(iv) Discrepancies. Where information

from another source contradicts statements

made by the household, the household shall

be afforded a reasonable opportunity to

App. 52

resolve the discrepancy prior to an eligi-

bility determination.

10. 76C.F.R. § 273.2(£)(5) provides:

(5) Responsibility for obtaining

verification. (1) e household has,

primary responsibility for providing docu-

mentary evidence to support its income

statements and to resolve any questionable

information. Households may supply documen-

tary evidence in person, through the mail,

or through an authorized representative.

The State agency shall accept any reason-

able documentary evidence provided by the

household and shall be primarily concerned

with how adequately the verification pro-

vides the statements on the application.

If it would be difficult or impossible for

the household to obtain the documentary

evidence in a timely manner, the State

agency shall offer assistance to the house-

hold in obtaining the documentary evidence,

except as otherwise stated in this section.

(ii) Whenever documentary evidence

cannot be obtained, the State agency shall

substitute a collateral contact or a home

visit. The State agency shall rely on the

household to provide the name of any collat-

eral contact. The household may request

assis- tance in designating a collateral

contact. The State agency is not required

to use a collateral contact designated by

the house- hold if the collateral contact

cannot be expected to provide an accurate

third-party verification. When the collater-

al contact designated by the household is

unacceptable, the State agenc shall ask

the household to designate aS collater-

al contact. The State agency is responsi-

ble for obtaining verification from accept-

able collateral contacts.

App. 53

The State agency shall not require the

household to personally present verifica-

tion at a food stamp office. [Emphasis

added. ]

ll. Refer ton. 4.

12. 7C.F.R. § 273.2(j) provides, in

pertinent part:

(3) PA and GA households. Households

in which all members are applying for

public assistance (PA) shall be allowed to

apply for food stamp benefits at the same

time they apply for PA benefits. These

households' food stamp eligibility and

benefit levels shall be based solely on

food stamp eligibility criteria, and the

households shall be certified in accordance

with the notice, procedural and timeliness

requirements of the food stamp regulations.

Households in which all members are apply-

ing for State agency administered general

assistance (GA) shall, at a minimum, be

provided with applications for food stamp

benefits and be referred to the appropriate

food stamp office for an eligibility deter-

mination. Under certain circumstances,

these households may be able to apply

a for their GA and food stamp bene-

its.

(1) PA households. (i) The applica-

tion for AFDC or other public assistance

shall contain all information necessary to

determine a household's food stamp eligibil-

ity and level of benefits. Information

relevant only to food stamp eligibility

shall be contained in the PA form or shall

be an attachment to it. The PA application

shall have a place for the household to

indicate if it does not wish to apply for

food stamps.

App. 54

xk k& &

Refer also to n. 3, 7 U.S.C. § 2020(i).

13. 7 U.S.C. § 2020(e)(5) provides:

(5) the specific standards to be used

in determining the eligibility of applicant

households which shall be in accordance

with sections 5 and 6 of this Act [7

U.S.C. §§ 2014, 2015] and shall include no

additional requirements imposed by the

State agency.

14. 7 U.s.C. § 2020(e)(6) provides, in

pertinent part:

(6) that (A) the State agency shall

undertake the certification of applicant

households in accordance with the general

procedures prescribed by the Secretary in

the regulations issued pursuant to this

Act.

Concurring Opinion

i. We were advised at oral argument that

in one county involved verification proce-

dures were conducted in a total of 350

cases. Of those, 61 arrests for fraud in

procurement of food stamps resulted. The

conviction rate was said to be approximate-

ly 90-91 percent.

App. 55

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ALICE ROBERTS, MARY JO ROBERTS,

CLARA LEE LONDON, JANE DOE,

and all other persons similarly

situated,

Plaintiffs,

vs. Case No.

80-183-Civ-

EDWARD T. AUSTIN, J-wc

ete., et ai.,

Defendants.

ORDER

This cause having been argued before

the Court upon Plaintiff's Motion for

Temporary Restraining Order and Preliminary

Injunction, the Court finds that Plaintiffs

have not demonstrated the existence of

either a reasonable expectation of privacy

or of a constitutional right of privacy by

the Plaintiffs in their food stamp

application forms or case files in the

possession of the Department of Health and

Rehabilitative Services; the Court further

APP. 56

finds that Plaintiffs have not demonstrated

that denial of such Motion would occasion

any immediate and irreparable injury to the

Plaintiffs. Absent demonstration of a

likelihood of success and of the threat of

immediate and irreparable injury, the

Motion should be denied. Holiday Inns of

America, Inc. v. B & B Corporation, 409 F.

2d 614 (3rd 1969). It is hereupon,

ORDERED:

i, That Plaintiffs Motion’ for

Temporary Restraining Order is denied.

2. Hearing on Plaintiffs' Motion for

Preliminary Injunction is hereby set for

March 14, 1980 at 2:00 o'clock P.M.

Plaintiffs shall serve and file all

additional papers and affidavits upon which

Plaintiffs intend to rely not later than

March 6, 1980. Defendants shall file and

serve all counter or opposing affidavits

together with a responsive memorandum brief

not later than Thursday, March 13, 1980.

APP. 57

DONE AND ORDERED at Jacksonville,

Florida this 3rd day of March, 1980.

/s/William castagna

UNITED STATES DISTRI JUDGE

APP. 58

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ALICE ROBERTS, MARY JO ROBERTS,

CLARA LEE LONDON, JANE DOE

and all other persons similarly

situated,

Plaintiffs,

vs. CASE NO.

80-183-

EDWARD T. AUSTIN, et al., Civ-J-wC

Defendants.

ORDER

Plaintiffs, pursuant to Rule 65,

F.R.Civ.P. and Local Rule 4.06 have

petitioned this Court to enter a

preliminary injunction against certain

Defendant officials of both the State

Attorney's Office for the Fourth Judicial

Circuit and the Florida Department of

Health and Rehabilitative Service (DHRS).

The Plaintiffs have previously sought a

Temporary Restraining Order which was

denied by this Court on March 3, 1980. A

APP. 59

hearing on Plaintiffs' request for a

preliminary injunction was held on March

28, 1980.

28 ¥.8.C §1337 provides a

jurisdictional basis for this action.

Section 1337(a) grants original

jurisdiction to the district courts "of any

civil action or proceeding arising under

any Act of Congress regulating commerce .

." One of the articulated purposes of

the Food Stamp Act is to "strengthen our

agricultural economy," as well as_ to

produce a more orderly marketing and

distribution of food," 7 U.S.C. § 2011.

Thus, it is clear that this action arises

out of an Act of Congress which regulates

commerce.

This request arises from an ongoing

investigation of food stamp recipients,

some of whom are present Plaintiffs, by the

Office of the State Attorney. This

investigation has been conducted in Nassau

APP. 60

and Clay Counties by the State Attorney's

Office initially by requesting and

receiving from Department of Health and

Rehabilitative Services access to case

files of food stamp recipients in all

households receiving $125.00 per month or