Opposition Brief — Parker v. Block (Nos. 83-6381, 83-1660)

Gul pe

RECEIVED

)D APK 9- 1984

OFFICE OF TH

No. 83-6361 _ SUPREME courr gn

IN THE —

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

GILL PARKER, ET AL.,

Petitioners,

v.

JOHN R. BLOCK, Secretary of the

United States Department

of agriculture,

and

CHARLES M. ATKINS, Commissioner of

the Massachusetts Department of

Public Welfare,

Respondents.

ON PETITION FOR A WRIT

OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

FRANCIS X. BELLOTTI

ATTORNEY GENERAL

ELLEN L. JANOS

Assistant Attorney General

One Ashburton Place

Boston, MA 02108

(617) 727-1031

Counsel of Record

ESTION PRESENTED

Whether certiorari should be granted to

review that portion of the Court of Appeals

decision which set aside the District Court

order of retroactive food stamp benefits and a

permanent injunction where the remedy ordered by

the District Court is unrelated to the due

process violation found, conflicts with the

intent of the federal statute, and imposes an

unnecessary and improper burden on the state.

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

REASONS WHY THE WRIT

SHOULD BE DENIED

I. THE COURT OF APPEALS

CORRECTLY SET ASIDE THE

UNNECESSARY AND OVERLY

INTRUSIVE MANDATORY

INJUNCTION.

A.

The District Court,

Not The Court Of Appeals,

Misunderstood The Nature

And Purpose Of A

Prospective Injunction.

The Court Of Appeals

Properly Recognized That

The District Court's

Remedial Authority Must

Be Consistent With The

Intent Of The Food Stamp

Act .

II. THE COURT OF APPEALS WAS

REQUIRED TO REVERSE THE

AWARD OF RETROACTIVE

BENEFITS TO THE ENTIRE

PLAINTIFF CLASS.

A.

CONCLUSION

Retroactive

Monetary Relief Is

Wholly Unrelated To

The Finding Of An

Inadequate Notice.

The Food Stamp Act

Allows Por The Payment

Of Retroactive Benefits

To Only Those Recipients

Who Have Received An

Incorrect Allotment.

ll

ll

13

1?

TABLE OF AUTHORITIES

Page

Cases

Alvemarle Paper Co. v.

422 U.S. 405 (1975) 7

Codd v. Velger,

429 U.S. 624 (1977) (per curiam) 12

Colbeth v. Wilson,

554 F. Su . 539 (D. vt. 1982),

aff'd, 707 F.2d 57 (2nd Cir. 1983) 16

Dayton Board of Education v. Brinkman,

433 U.S. 406 (1977) ll

Doran v. Salem Inn, Inc.,

422 U.S. 922 (1975) 4

Edelman v. Jordan,

415 U.S. 651 (1974) 16

Poggs v. Block,

722 F.2d 933

(ist Cir. 1983) 2, 6m, l2n, l3n

Hartford-Empire v. U.S.,

323 U.S. 386 (1946) 5

Hendrick Hudson Dist. Bd.

of Bd. v. Rowley,

456 U.S. 176 (1982) 9

Klai v. Bergland,

15 F.2d 477 (10th Cir. 1983) 16

City of Mesquite v. Aladdin's

Castle, Inc.,

455 U.S. 263 (19862) 6

Milliken v. Bradley,

433 U.S. 267 (1977) li

Mitchell v. W.T. Grant Co.,

416 U.S. 600 (1974) 12

Morrissey v. Brewer,

406 U.S. 471 (1972) 7n

Olim v. Wakinekona,

103 S. Ct. 1741 (1983) 12

Pennhurst v. Halderman,

104 S. Ct. 900 (1984) 3, 4, 7

Poe v. Gerstein,

417 U.S. 261 (1974) (per curiam) +

- iii -

Rizzo v. Goode,

423 U.S. 362 (1978)

Rosado v. Wyman,

397 U.S. 397 (1970)

Rothstein v. Wyman,

467 F.2d 226 (2nd Cir. 1972)

Schweiker v. Hansen,

450 U.S. 785 (1981) (per curiam)

Schweiker v. McClure,

456 U.S. 188 (1982)

Stefanelli v. Minard,

342 U.S. 117 (1951)

United Transportation Union v. State

Bar of Michigan,

401 U.S. 576 (1971)

Constitutional Provision

XIV Amendment, Due Process Clause

Statutes

7 U.S.C. 2011

7 U.S.C. 2013(c)

7 U~.S.C. 2014(c)

7 U.S.C. 2014(e)

7 U.S.C. 2020(e)(10)

7 U.S.C.

s

s

$

$s

U.S.C. § 2020

$

§ 2020(e) (11)

b)

7 U.S.C. 2025(b)(1)

91 Stat. 958 (1977)

95 Stat. 357 (1981)

Pub. L. No. 95-113, § 1301

Pub. L. No. 97-35

Pub. L. No. 97-35, § 106

- iv-

Page

16

15

7n

passim

16

Regulations

7 C.F.R. § 273.9(a)(1981)

7 C.F.R. § 273.12(e) (1981)

7 C.P.R. § 273.12(e)(1) (ii) (1981)

7 C.F.R. § 273.13(1981)

7 C.P.R. § 274.9(d) (1981)

46 Ped. Reg. 44712 (Sept. 4, 1981)

Miscellaneous

H. R. Rep. No. 95-464,

95th Congress, lst Sess. 2,

reprinted in 1977 U.S. Code

Cong. & Ad. News 1976

H. R. Rep. No. 95-464,

95th Congress, lst Sess. 285,

reprinted in 1977 U.S. Code

ong. d. News 2220

Ss. Rep. No. 97-139,

97th Cong., lst Sess. 2-3,

reprinted in 1981 U.S. Code

Cong. & Ad. News 397-98

- Ve-

Page

6

ln, 9

l3n

ln, 9, l3n

9

15

l4n

14

15

7 A

STATEMENT OF THE CASE

This class action was brought on behalf of

more than 16,000 food stamp households

challenging the form and content of a "mass

change*® notice issued by the Massachusetts

Department of Public Welfare (the Department) in

December 1981. The notice informed the

recipients of across-the-board benefit

reductions or terminations required by a

congressional amendment to the Food Stamp Act of

1977, lowering the earned income deduction from

20% to 18%. Pub. L. No. 97-35, § 106, 95 Stat.

357 (1981), 7 U.S.C. § 2014(e).2/

Following a two-day trial, the District

Court found that the Department's notice of the

mandated change did not meet the requirements of

the Due Process Clause because of the notice's

language, format, and lack of individualized

financial data for each particular recipient .2/

1/ The Secretary of Agriculture distinguishes

Between mass change notices, which are permitted

when state or federal changes in the program

affect significant portions of the caseload, and

notices of adverse action, which are required

prior to any reduction or termination of a

particular household's benefits. Compare 7

C.P.R. § 273.12(e)(1981) (mass change notices)

with 7 C.F.R. § 273.13(1981)(adverse action

notices).

2/ The Department has filed a cross-petition

requesting that this Court review the substantial

constitutional questions raised by the Court of

Appeals affirmance of the District Court on this

issue.

Despite the lack of findings that tne 16,000

class members were erroneously deprived of food

stamp benefits, the District Court awarded

retroactive food stamp benefits to all 16,000

members of the plaintiff class. In addition, it

issued a permanent injunction governing the

nature and content of all future food stamp

notices, and required the Department to draft

and promulgate state regulations, whose content

was to be subject to court approval, containing

specific standards for the comprehensibility and

legibility of all future food stamp notices.

The Commissioner of Public Welfare and the

Secretary of the United States Department of

Agriculture appealed from the judgment of the

District Court.

The Court of Appeals affirmed the District

Court's decision as to the inadequacy of the

notice but set aside its order of “wide ranging

relief." Instead, the Court of Appeals ordered

the Department to determine whether any

particular household's benefits were “improperly

recalculated,* and if so, to provide retroactive

benefits to only those households. Poggs v.

Block, 722 F.2d 933, 941 (list Cir. 1983); App.

17.3/

3/ The Appendix to the petition for writ of

Certiorari is hereafter referred to as “App.”.

-

The petitioners seek review of that portion

of the Court of Appeals decision which addresses

the propriety of the prospective and retroactive

remedies ordered by the District Court,

REASONS WHY THE WRIT SHOULD BE DENIED

I. THE COURT OF APPEALS CORRECTLY SET

ASIDE THE UNNECESSARY AND OVERLY

INTRUSIVE MANDATORY INJUNCTION.

A. The District Court, Not The

Court Of Appeals, Misunderstood

The Nature And Purpose Of A

Prospective Injunction,

In reversing the order for prospective

injunctive relief, the Court of Appeals noted

that there is “nothing in the record to indicate

that the Department acted in bad faith" nor any

"reason to doubt that the state will strive to

provide constitutional notice in the future."

Petitioners assert that review of the

prospective injunctive relief is appropriate in

this Court because the Court of Appeals decision

conflicts with this Court's recent decision in

Pennhurst v. Halderman, 104 S. Ct. 900 (1964).

The petitioners’ argument with respect to the

prospective relief is clearly without merit and

reflects a misunderstanding of the Court of

Appeals decision as well as the Pennhurst

decision.

Pennhurst held that a federal court lacks

the power to award injunctive relief against

State officials on the basis of state law. The

petitioners rely, not on this holding, but on a

footnote stating that a finding of good faith,

and therefore immunity from damages, “does not

affect whether an injunction might be

issued... by a court possessed of

jurisdiction."® Id. at 912 n.17 (emphasis added).

Petitioners’ reli*nce on this note is

misplaced since the Court of Appeals decision is

entirely consistent with the principle

articulated in that footnote. The District

Court injunction was not set aside simply

because the Department demonstrated a lack of

bad faith. Rather, the Court of Appeals

considered the Department's lack of bad faith as

one of several factors in order to assess

whether, under the facts and circumstances of

this case, a prospective mandatory injunction

was necessary.

This was an appropriate consideration by the

Court of Appeals since an injunction should not

be granted except in the most extraordinary

circumstances. Rizzo v. Goode, 423 U.S. 362,

379 (1976). Moreover, the Court of Appeals well

understood that in cases involving a government

defendant, a declaration is sufficient to ensure

future conduct. Doran v. Salem Inn, Inc., 422

U.S. 922, 931 (1975) (*°[A) district court can

generally protect the interests of a federal

plaintiff by entering a declaratory judgment,

and therefore the stronger injunctive medicine

will be unnecessary."). Finally, where there is

no proof that the state defendant will continue

to engage in the proscribed conduct, an

injunction is unwarranted. Poe v. Gerstein, 417

U.S. 281 (1974) (per curiam); United

Transportation Union v. State Bar of Michigan,

401 U.S. 576, 564 (1971).

Here, the District Court's declaration that

the challenged food stamp notice did not meet

due process requirements was sufficient. The

Court of Appeals properly reversed the District

Court's permanent injunction as to the content,

legibility, and comprehensibility of all future

notices of reduction which would, of course,

subject the Department to a constant threat of

contempt proceedings to test the adequacy of any

future food stamp notice. See Hartford-Empire v.

U.S., 323 U.S. 386, 410 (1946).

It was undisputed at trial that the

challenged notice of reduction, with respect to

its type-size and wording, was not the

Department's typical food stamp mass change

notice. There was no showing that the

Department planned to issue other notices with

Similiar type and wording. Indeed, such a

showing would have been a virtual impossibility;

part of the difficulty with the challenged

notice stemmed from its attempt to provide a

thorough explanation of the effect of the

District Court's temporary restraining order on

the recipients’ previous benefit reductions and

appeal rights. This attempt was, in turn,

thought necessary because the District Court had

enjoined the accices originally issued the

previous month and ordered restoration of

benefits.4/ Particularly in light of the

court's declaration of rights, such a set of

circumstances is hardly likely to recur.

Purthermore, with respect to the due process

challenge on the basis of lack cf

recipient-specific data, the District Court

found that the Department currently includes in

all mass change notices under the Food Stamp

Program each household's old and new benefit

amount. App. 49. The Department's voluntary

inclusion of certain recipient-specific data in

current mass change food stamp notices is surely

an important factor as to whether it was

necessary for the District Court to order such

extraordinary relief. E.g., City of Mesquite v.

Aladdin's Castile, Inc., 455 U.S. 283 (1982).

Under these circumstances, the Court of

Appeals was correct in determining that there

had been no showing that the Department is

unwilling or unable to meet the dictates of a

@eclaration. Consequently, it was correct in

4/ The notice was in two parts; the first part

explained the statutory change in the earned

income deduction and appears in its entirety in

the Court of Appeals decision, 722 F.2d at 936,

App. 4; the second part provided the explanation

of the temporary restraining order. Id.

ruling that it was improper to impose the

extraordinary remedy of a permanent injunction

in this case.2/

Although the District Court has a good deal

of discretion to tailor an appropriate remedy,

the exercise of that discretion is not

unfettered by meaningful standards or shielded

from thorough appellate review. See Albemarle

Paper Co. v. Moody, 422 U.S. 405, 416 (1975).

The consideration of the Pepartment's lack of

bad faith was, indeed, relevant to the District

Court's proper exercise of its discretion and is

in accordance with this Court's recent Pennhurst

decision.

B. The Court Of Appeals Properly

Recognized That The District Court's

Remedial Authority Must Be Consistent

With The Intent Of The Food Stamp Act.

The District Court's injunction as to the

content of ali future food stamp mass change

notices as well as its order tha@ the Department

S/ as the Department makes clear in its

cross-petition, an injunction or declaration

prescribing the content of future notices to be

applied under every set of facts and

circumstances is fundamentally inconsistent with

this Court's decisions on due process. The

requirements of due process are “fiexible and

call for such procedural protections as the

particular situation demands.* er v

+ 456 U.S. 188, 200 (isea} ant.

, 408 U.S. 471, 481 (1972)).

mposition of requirements for

recipient-specific data, type size, and minimum

readability levels to govern in every set of

circumstances, hardly allows for the flexibility

necessary to meet the unique circumstances which

will inevitably give cise to future mass change

notices.

2 Ve

Graft state regulations, for its approval, with

legibility and comprehensibility standards’

for future notices is inconsistent with the

intent of the Food Stamp Act.

The details of implementing federal law in

the area of public assistance, when not

explicitly laid out by federal statute or

regulation, are left to the states. Rosado v.

Wyman, 397 U.S. 397, 406-409 (1970). The Pood

Stamp Program is funded by the federal

government, but is largely administered by the

states. 7 U.S.C. § 2020. The states are

required to administer the program in a manner

consistent with federal law and regulations

promulgated by the Secretary of Agriculture, 7

U.S.C. $§ 2013(c), 2025(0)(1), and certain

aspects of the administration of the program are

explicated in great detail by federal

regulations. E.g., 7 C.FP.R. § 273.9(a)(19861)

(eligibility criteria and benefit levels which

&/ The District Court heard evidence offered by

Plaintiffs concerning typeface, size of type,

capitalization, the frequency of multisyllabic

words, the reading level of the average food

stamp recipient, and similar matters. On this

evidence the District Court concluded that the

Due Process Clause requires mass change notices

to be printed no smaller than eight-point type,

with a mixture of upper and lower case letters,

and written for a person with a fifth-to-sixth

grade reading capacity. Accordingly, its

permanent injunction required the Department to

promulgate state regulations that set forth

specific standards for the reading level and

typographical format of future mass change

notices. No similiar order was entered with

respect to the federal defendant.

States must adhere to); 7 U.S.C. § 2014(c) and 7

C.P.R. § 274.9(d)(1981) (explicit prescription

of method for computing household income for

eligibility purposes).

In contrast to these explicit federal

requirements, the federal statutory and

regulatory scheme governing the issuance of mass

change notices is silent as to the form and

content of those notices. Thus, while the

States must certainly draft and issue notices

which meet the minimum requirements of due

process, the precise contours of the states’

adherence to constitutional principles, such as

choice of typeface or diction, is left to the

states. 7 C.F.R. § 273.12(e)(19861)(mass change

notices). Compare 7 C.F.R. § 273.13(19861)

(individual notice of adverse action must

contain certain specific information).

The District Court's attempt to intrude on

the state's implementation prerogatives, in an

area delegated to the states by the Secretary of

Agriculture, is inconsistent with congressional

intent to leave the administration of the

program up to the Secretary and each

participating state. Cf. Hendrick Hudson Dist.

Bd. of Ed. v. Rowley, 458 U.S. 176, 208 (1982)

(in analagous federal scheme, “questions of

methodology are for resolution by the states.*);

See also Rizzo v. Goode, 423 U.S. 362, 376

(-978) (quoting Stefanelli v. Minard, 342 U.S.

117, 120 (1951)) (*federal courts must be

constantly mindful of the ‘special delicacy of

the adjustment to be preserved between federal

equitable power and state administration of its

own law.'*).

In sum, although the District Court has

broad discretionary authority to fashion an

equitable remedy, the scope of any such relief

must be consistent with the intent of the Food

Stamp Act. Congress intended that the

Secretary, not the federal courts would set

forth the requirements of the Food Stamp

Program. Here, where the Secretary has allowed

each state to determine the form and content of

a mass change notice, the Court of Appeals was

correct in holding that the District Court

should not be permitted to impose specific

notice requirements on the Department.

This reason, standing by itself, presents a

sufficient basis for denying the writ, but it

also should be denied on the basis of a related,

even more compelling argument which also

emanates from the terms of the Food Stamp Act.

As we show in the following argument, adherence

to the congressional mandate required the Court

of Appeals to modify the broad relief awarded by

the trial court.

III. THE COURT OF APPEALS WAS REQUIRED

TO REVERSE THE AWARD OF

RETROACTIVE BENEFITS TO THE ENTIRE

PLAINTIFF CLASS.

A. Retroactive Monetary Relief

Is Wholly Unrelated To The

The District Court found that the

Department's notice of congressional changes in

the earned income deduction was constitutionally

inadequate because, inter alia, individual

recipients were not able to determine whether a

factual error had been made and, therefore,

whether to appeal the reduction or termination

of benefits. Based upon its finding of an

inadequate notice, the District Court awarded

retroactive benefits to the entire class of

16,000 recipients. The Court of Appeals

reversed this award of sweeping relief and

instead ordered the Department to review all the

recipients’ files and provide retroactive

benefits, but only to those recipients who, in

fact, received incorrect benefits.

The Court of Appeals decision properly

recognizes that a remedy must be related to “the

condition alleged to offend the constitution,*

and should be “designed as nearly as possible to

restore the victims ... to the position they

would have occupied in the absence of such

conduct.” Milliken v. Bradley, 433 U.S. 267,

260 (1977); Dayton Board of Education v.

Brinkman, 433 U.S. 406, 417 (1977).

Under the petitioners’ theory of due

process, an insufficient notice, by itself,

results in erroneous benefits, even if those

benefits were properly calculated and issued.

This theory, of course, fails to recognize that

*[p)rocess is not an end in itself. Its

constitutional purpose is to protect a

substantive interest to which the individual has

a legitimate claim of entitlement.* Olim v.

Wakinekona, 103 S. Ct. 1741, 1748 (19863); Codd

¥. Velger, 429 U.S. 624, 627 (1977)(per

curiam); See also Mitchell v. W.T. Grant Co.,

416 U.S. 600, 616 (1974)(due process protects

substantial rights, it does not guarantee a

particular form of procedure).

Here, the plaintiffs’ substantive interest

is in having their food stamp benefits properly

calculated using the congressionally-mandated

16% earned income deduction. The vast majority

of recipients, in fact, received the proper

amount of food stamps ._/ To provide them with

retroactive benefits is not to restore them to

the position they would have been in had they

received a notice with more information, but

Since the federal Tr. simply rc a a

ter recalculation of each

benefits using financial data already on file,

the risk of an error in benefits, attributable

to the implementation of this reduction, was

minimal. The Court of Appeals properly

recognized “the absence of any showing that a4

substantial percentage of these recipients had

their benefits improperly reduced or

terminated.* 722 F.2d at 941; App. 16.

rather, to provide awindfall not contemplated by

the Food Stamp Act. It would do so at

taxpayers’ expense.

B. The Food Stamp Act Allows For

The Payment Of Retroactive

Benefits To Only Those

Recipients Who Have Received An

Incorrect Allotment.

The Food Stamp Act provides for restoration

of benefits which have been “wrongfully denied

or terminated*. 7 U.S.C. § 2020(e)(11). It

also generally provides for notice and hearing

prior to any “adverse action" by the state. 7

U.S.C. § 2020(e)(10).8/ the petitioners’

interpretation of the Act's restoration

provision is again based upon the faulty premise

that if the Act's notice requirements have not

been followed,2/ then benefits have

automatically been “wrongfully denied". The

8/ While the Food Stamp Act addresses generally

a notice prior to an adverse action, the

Secretary of Agriculture, in his administration

of the Program, distinguishes between the type

of notice necessary prior to an “adverse action®

affecting a particular household and that

required prior to the implementation of

across-the-board changes in the program

affecting a significant rtion of the caseload.

compat ® C.P.R. § 273.12(e)(1) (ii) (1981)

mass change notices) with 7 C.F.R. § 273.13

(1981) (individual adverse action notices).

9/ The Court of Appeals equated the

constitutional and statutory standards, holding

that if the notice was insufficient for purposes

of the Due Process Clause, then it was

insufficient for purposes of the statute's

general notice requirement. 722 F.2d at 940;

App. 14-15.

e A3

we

5

4

¥

Act's relevant legislative history, which

reflects a clear intent to reduce program costs

while providing benefits only to those who are

in financial need, contradicts petitioners’

argument.

The restoration of benefits provision was

amended by the Food Stamp Act of 1977, Pub. L.

95-113, § 1301, 91 stat. 958 (1977).22/ he

House Report discussing this provision clearly

indicates that benefits should be restored only

to those households which received amounts less

than they were entitled to receive. Venee, ifa

household lost benefits because it was found to

be ineligible when it was eligible or because

its allotment was not as high as it should have

been such benefits would be recouped in the form

of allotment add-ons." H.R. Rep. No. 95-464,

95th Congress, lst Sess. 285, reprinted in 1977

U.S. Code Cong. & Ad. News 2220 (emphasis

added). There is no indication that an improper

notice, standing alone, should give rise to

restoration of benefits.

The congressional amendment to the earned

income deduction which resulted in this pawsuit

10/ The 1977 amendments wrought major changes

Tn the Pood Stamp Act as a whole, particularly

with respect to tightening program

administration, eliminating the non-needy from

the program, and holding program costs close to

current program levels. See H.R. Rep. No.

95-464, 95th Congress, lst Sess. 2, reprinted in

1977 U.S. Code Cong. & Ad. News 1978.

« 1g «

was part of the 1981 Omnibus Budget

Reconciliation Act, Pub. L. 97-35, 95 Stat. 357

(1981), the sole purpose of which was to reduce

federal spending. See S. Rep. No. 97-139, 97th

Cong., lst Sess. 2-3, reprinted in 1981 U.S.

Code Cong. & Ad. News 397-98. Similarly, the

express purpose of the 1981 amendments to the

Pood Stamp Act was to reduce the growth of Food

Stamp Program expenditures “by restricting

eligiblity for the Program and reducing benefits

for certain households which remain eligible.*

46 Fed. Reg. 44712 (Sept. 4, 1981). Lowering

the earned income deduction by 2% was part of

this effort to reduce total program costs by

reducing benefits to those households with

earned income. Yet, the District Court's order

did what Congress specifically required states

not to do; that is, it required the Department

to compute eligible recipients’ benefits based

upon a 20% rather than 18% earned income

deduction. Cf. Schweiker v. Hansen, 450 U.S.

785, 788 (1981) (per curiam) ("duty of all

courts to observe the conditions defined by

Congress for charging the public treasury").

Even where a household has actually been

denied the correct benefit level, an award of

retroactive benefits more than two years after

the wrongful denial is inconsistent with the

stated congressional purpose of the Food Stamp

Act. The purpose of the Act is to raise the

level of nutrition among low income households

e 36 «

by increasing food purchasing power. Pub. L.

95-113, § 1301, 91 Stat. 958, 7 U.S.C. § 2011.

"As time goes by, retroactive payments become

compensatory rather than remedial; the

coincidence between previously ascertained and

existing needs becomes less clear." Edelman v.

Jordan, 415 U.S. 651, 666 n.1ll (1974) (quoting

Rothstein v. Wyman, 467 F.2d 226, 235 (2nd Cir.

1972)). At least two circuits have followed

this reasoning to bar retroactive benefits even

where the households received a benefit amount

less than that to which they were entitled. See

Klaips v. Bergland, 715 F.2d 477, 484-485 (10th

Circ. 1983); see also Colbeth v. Wilson, 554 F.

Supp. 539, (D. Vt. 1982), aff'd, 707 F.2d 57

(2nd Cir. 1983).

Tne Court of Appeals decision, in contrast

to the District Court action, is entirely

consistent with the purpose of the Food Stamp

Act. Under its formulation, retroactive

benefits are extended only to those households

which received an erroneous allotment for

whatever reason. The Court of Appeals did,

indeed, reverse the award, but it did so only as

to those households whose benefits were

correctly computed in accordance with the

dictates of Congress using the 18%, rather than

the 20%, earned income deduction, Contrary to

petitioners' argument, neither the Food Stamp

Act, decisions of this Court, nor considerations

of equity require more than this.

© 16 «

CONCLUSION

For the fore oing reasons, the Commissioner

of Public Welfare requests that the petition for

awrit of certiorari be denied. If the writ

issues, however, the Commissiorer requests that

his cross-petition be granted so that the entire

case can be presented to this Court for review.

Respectfully submitted,

FRANCIS X. BELLOTTI

ATTORNEY GENERAL

ELLEN L. JANOS

Assistant Attorney

One Ashburton Place

Boston, MA 02108

(617) 727-1031

Counsel for Respondent

Atkins

Dated: April 6, 1964

e 39 «