Indiana Welfare Rights Organization, Inc., an Indianacorporation, Bonita Johnson, Catherine Phipps, Onbehalf of Themselves and All Otherpersons Similarly Situated,plaintiffs-appellants, v. Robert Bergland, Individually and in His Capacity As Unitedstates Secretary of Agriculture, Wayne A. Stanton,individually and in His Capacity As Administrator of Theindiana Department of Public Welfare, Allen E. Greene,individually and in His Capacity As Director of the Foodstamp Division of the Indiana Department of Public Welfare,defendants-appellees, 598 F.2d 1055 (7th Cir. 1979)

On December 1, 1977, this action was filed by Bonita Johnson, Jeanette Chrisman and Catherine Phipps, individual food stamp recipients, and the Indiana Welfare Rights Organization, an Indiana Corporation, as a nationwide class action, against the Secretary of Agriculture, Robert Bergland, and Indiana Welfare Officials Wayne Stanton and Allen Greene. The named plaintiffs claimed inability to pay the purchase price requirements of the food stamp program. Plaintiffs sought preliminary and permanent injunctive relief prohibiting defendants from delaying implementation of Section 8 of the Food Stamp Act of 1977 which eliminates the purchase price for food stamp benefits; declaratory relief that defendants' failure to implement Section 8 immediately violated plaintiffs' rights; and damages in the form of cash refunds of the purchase price that was paid after October 1, 1977 and up to the time when the purchase price is no longer required.

Statutory authority for the Food Stamp Program was formerly found in the Food Stamp Act of 1964, with amendments. 7 U.S.C. §§ 2011-2026 (1976). Section 2016(b) (§ 7(b) of the 1964 Act) provided in part: "households shall be charged for the coupon allotment issued to them, and the amount of such charge shall represent a reasonable investment on the part of the household, but in no event more than 30 per centum of the household's income . . . ." Pursuant to this provision and regulations thereunder, eligible households were required to purchase food stamps at a reduced rate based on their size and cumulative income. The households used the stamps to buy food, and the government has redeemed the stamps at face value, thereby paying the difference between the cost of the food and the "reasonable investment" paid by the household under the so-called purchase requirement.

Elimination of the purchase requirement, often referred to as EPR, was one of the reforms directed by Congress in the Food Stamp Act of 1977, part of the Food and Agriculture Act, P.L. 95-113, 91 Stat. 969. EPR has been characterized as the "most significant change" in the bill. H.R. Rep.No.95-464, 95th Cong., 1st Sess. at 239 (1977).

The 1977 Act took the form of an amendment of the 1964 Act, effective October 1, 1977. 7 U.S.C. § 2017 (Sec. 8 of the Act as amended) corresponds to 7 U.S.C. § 2016 before the amendment (Sec. 7 of the 1964 Act) and contains no purchase requirement, but does provide, in part, that the value of the allotment to eligible families shall be equal to the cost of the "thrifty food plan" reduced by an amount equal to 30 per centum of the household's income as determined in accordance with section 5 (7 U.S.C. § 2014). A sentence in 7 U.S.C. § 2017(a) is the only direct reference in the Act to EPR: "The Secretary shall, six months after the implementation of the elimination of the charge for allotments and annually thereafter, report to Congress the effect on participation and cost of this elimination."

Although Section 1301 of P.L. 95-113 made the amendment to the Food Stamp Act of 1964 effective October 1, 1977, Section 1303(a) demonstrated recognition that the Food Stamp Program is largely delineated by regulations which would need revision to reflect the statutory changes. Section 1303(a) provided in part: "The Secretary of Agriculture shall implement the Food Stamp Act of 1977 as expeditiously as possible consistent with the efficient and effective administration of the food stamp program. The provisions of the Food Stamp Act of 1964, as amended, which are relevant to current regulations of the Secretary governing the food stamp program, shall remain in effect until such regulations are revoked, superseded, amended, or modified by regulations issued pursuant to the Food Stamp Act of 1977. . . ."

Thus the reference to October 1, 1977 as an effective date was qualified so as to maintain former provisions in force until the change be reflected in regulations.

The Secretary sponsored public hearings, and sought confirmation and advice in various ways. On May 2, 1978 it published proposed rules covering changes, including EPR, which the Secretary considered closely interrelated and needing concurrent implementation. 43 Fed.Reg. 18874. On October 17, 1978, after revision, the final rules were published, requiring the state agencies to eliminate the purchase requirement for all households on or before January 1, 1979. Section 272.1(g) (1) (i).

It does appear that the Secretary more expeditiously worked out a change in the rule for giving effect to utility bills in connection with the Food Stamp Program. A rule governing the matter was published November 30, 1977, 42 Fed.Reg. 60916, effective January 1, 1978, and an amendment was filed January 11, 1978.

Plaintiffs apparently agreed that the statutory amendment eliminating the purchase requirement was not self-executing, but claimed that the Secretary and other defendants had a duty to implement 7 U.S.C. § 2017 immediately after October 1, 1977. Plaintiffs contend that the Act required the Secretary to separate EPR from all other changes if necessary to accomplish EPR immediately.

The district court addressed the matter on cross motions for summary judgment, and granted judgment for defendants June 30, 1978. The gist of the court's conclusion was as follows:

The Act is a comprehensive re-vamping of the food stamp program. Each section of the Act is substantially dependent upon the other sections of the Act. Section 1303(a) of the Act requires (defendant) Bergland to implement the Act as expeditiously as possible consistent with the efficient and effective administration of the food stamp program. That section does not require any section of the Act to be implemented sooner than any other section of the Act. Portions of the legislative history of the Act have been cited by the parties to support their respective positions, but the legislative history does not, and cannot, vary the plain language of the Act, particularly Section 1303(a) thereof.

We agree.

Initially plaintiffs sought an injunction prohibiting the defendants from failing to implement EPR immediately, virtually Mandamus. They also sought refunds of the purchase price paid by class members after October 1, 1977. By the date of argument of the appeal, November 8, 1978, the regulation had been issued and had provided for EPR by January 1, 1979. Accordingly, the request for mandatory relief is moot.

Plaintiffs do cite statements by individual Senators which support their view that immediate implementation of EPR, independently of other changes, was intended. One of several examples is a speech by Senator Leahy, a member of the subcommittee responsible for the bill. He said on September 9, 1977: "Because EPR is such an important gain, I hope it will be implemented as soon as possible after this bill's enactment. This reform is not dependent on other features of the bill, and thus does not have to wait until more complicated provisions are in place. I urge the Secretary not to delay in implementing the EPR provision." 123 Cong.Rec.S. 14570 (daily ed. September 9, 1977).

On the other hand, nothing in the text of the Act nor the Committee Reports suggests a duty of immediate or separate implementation, and the Secretary cites passages from the Reports evidencing the concept that the changes directed by the Act are interrelated.

Representative Foley, who chaired both the House and Conference Committees and was the bill's floorleader in the House, commented concerning court actions brought to seek loopholes in the bill: "But, if the courts should confront such cases, we trust that they will read and construe this new food stamp law in light of our intent to trust its management to the Department of Agriculture operating in good faith and under the guidance of our legislative dictates." 123 Cong.Rec.H. 9535 (daily ed. September 16, 1977).

The Secretary argues persuasively that portions of the Act and the program contemplated support the close relationship between EPR and other changes.

Thus under the 1964 Act, a household participating in the Food Stamp Program received a "coupon allotment" equal to the cost to the household of a "nutritionally adequate diet," 7 U.S.C. § 2016(a) (1976). Households with income (after deductions, See 7 C.F.R. § 271.3(c) (1977)) greater than the "zero-purchase" level were charged an amount for the coupons that "represent(s) a reasonable investment on the part of the household, but in no event more than 30 per centum of the household's income." 7 U.S.C. § 2016(b) (1976); See 7 C.F.R., pt. 271 apps. A-F (1977). The food stamps were used by recipients "to purchase food at retail stores, and the government redeems the stamps at face value, thereby paying the difference between the actual cost of the food and the amount paid by the household for the stamps." United States Department of Agriculture v. Moreno, 413 U.S. 528, 530, 93 S. Ct. 2821, 2823, 37 L. Ed. 2d 782 (1973).

Under the 1977 Act, no purchase requirement is charged for the coupons but the face value of the coupons is reduced "to the cost to such households of the thrifty food plan,¹  as determined in accordance with Section 5 of the Act. . . ." Food Stamp Act of 1977, § 8(a), 7 U.S.C. § 2017.²  Section 5 contains detailed requirements for financial eligibility to participate in the program and describes the level of available benefits. Thus, the implementation of EPR is textually limited to the implementation of Section 5. A House report noted: "(t)he committee bill will add approximately 1,749,000 new people with net incomes below the poverty level to the program. The net effect of this addition offset by the elimination of 1,344,000 non-needy is to add 405,000 individuals." H.R.Rep.No.95-464, at 4. The Secretary argues that had EPR been implemented before the other reforms as plaintiffs urged, the Food Stamp Program would have been significantly inflated by the addition of more needy persons without the elimination of the non-needy and the congressional objectives of a simplified, efficient, and cost-effective program would have been undermined.

Deference is due the interpretation given to a statute by the agency charged with its administration. " 'Particularly is this respect due when the administrative practice at stake "involves a contemporaneous construction of a statute by the man charged with the responsibility of setting its machinery in motion; of making the parts work efficiently and smoothly while they are yet untried and new." ' " Udall v. Tallman, 380 U.S. 1, 16, 82 S. Ct. 792, 801, 13 L. Ed. 2d 616 (1965).

The Act did not expressly require immediate implementation of EPR, separate from implementation of other changes. We are satisfied that no such duty was implied.

The duty which was imposed by Section 1303(a) of the Act was to "implement . . . as expeditiously as possible consistent with the efficient and effective administration of the . . . program."

Another section, 7 U.S.C. § 2013(c), required the Secretary to promulgate all regulations in accordance with the procedures set forth in Section 553 of Title 5 (Rule Making).³ 

Once one accepts the Secretary's right to deal with EPR along with the other matters covered in the October, 1978 rule, it would be most difficult to demonstrate that he failed in his duty of expeditious implementation, assuming the appropriateness of judicial review. Surely there has been no such demonstration.

Plaintiffs asked the district court to permit the action to be maintained on behalf of all applicants in the United States required to pay a purchase requirement. The court limited the class to persons in Indiana. Plaintiffs have argued on appeal that this limitation of the class was erroneous.

In view of the outcome, unfavorable to the class as limited, we perceive no reason for deciding whether a larger class of plaintiffs should have been certified.

The judgment appealed from is Affirmed.