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RUSSO v. KIRBY

December 13, 1971

Saverio RUSSO, Suing on Behalf of Himself and All Other Persons Similarly Situated, and the Dependents Thereof, Plaintiff,
v.
James KIRBY, Commissioner of Social Services for Suffolk County, Defendant


Judd, District Judge.


The opinion of the court was delivered by: JUDD

MEMORANDUM AND ORDER ON FOOD STAMP ADJUSTMENTS

JUDD, District Judge.

 In this civil rights action to establish the right of striking New York Telephone Company employees to receive various forms of public welfare assistance, a separate issue was presented concerning the court's power to direct retroactive issuance of food stamps. The court previously ruled, on a motion for preliminary injunction, that food stamps had been improperly denied to households where a member was on strike. Most New York Telephone Company strikers have not had to rely on public welfare before, and some of them may already have found other employment which would terminate their eligibility even for food stamps.

 The Statutory Right to Food Stamps

 It is clear from the Food Stamp Act that participation in a strike does not deprive a person of the right to food stamps if he or she is otherwise qualified. Any doubt on this subject was removed by the 1971 amendment (P.L. 91-671) which added subdivision (c) to 7 U.S.C. § 2014. The section now provides for the adoption of uniform national standards of eligibility, including a provision which excludes households containing an able-bodied adult who fails to register for employment or accept employment. The concluding sentence of subsection (c) states:

 
Refusal to work at a plant or site subject to a strike or a lockout for the duration of such strike or lockout shall not be deemed to be a refusal to accept employment.

 Refusal of food stamps on the basis of implications drawn from the 1971 amendments to the New York Social Services Law, Section 131(4), was therefore clearly improper. The refusal could have been corrected by a fair hearing pursuant to 7 U.S.C. § 2019(e)(6), if defendant had informed the strikers of their rights as required by the regulations, 37 C.F.R. § 271.1(o)(1).

 The Necessity of a Remedy for Wrongful Refusal to Issue Food Stamps

 The nature of the food stamp program indicates the necessity of providing some remedy for wrongful refusal to issue food stamps to an eligible applicant.

 In enacting the food stamp legislation, Congress acknowledged the relationship between hunger and malnutrition and "limited food purchasing power." 7 U.S.C. § 2011 as amended. The final sentence of amended Section 2011 states:

 
To alleviate such hunger and malnutrition, a food stamp program is herein authorized which will permit low-income households to purchase a nutritionally adequate diet through normal channels of trade.

 It is clear that Congress intended that the state agency would provide an opportunity to participate to all those households which are eligible. 7 U.S.C. § 2013(a) as amended.

 Applicants for food stamps should be entitled to the same judicial protection of their rights as recipients of welfare benefits. The Supreme Court stated in Goldberg v. Kelly, 397 U.S. 254, 262, 90 S. Ct. 1011, 1017, 25 L. Ed. 2d 287 (1970), that welfare benefits are "a matter of statutory entitlement for persons qualified to receive them."

 Although the statute and regulations give no specific remedy, the general rule is that an injured individual must be afforded a remedy when a federally protected right has been invaded. As was stated in Bell v. Hood, 327 ...


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