Condosta v. Dept. of Social Welfare

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 89-029


Guido Condosta                               Supreme Court

     v.                                      On Appeal from
                                             Human Services Board
Department of Social Welfare
                                             March Term, 1990


John Wesley, Chair

Guido Condosta, pro se, Brattleboro, plaintiff-appellant

Jeffrey L. Amestoy, Attorney General, and Donelle S. Staley, Assistant
   Attorney General, Waterbury, for defendant-appellee



PRESENT:  Allen, C.J., Peck and Gibson, JJ.


     GIBSON, J.   Petitioner appeals a Human Services Board decision
reducing his food stamp benefits.  We affirm.
     The present appeal is a direct result of confusion that resulted when
the Department of Social Welfare failed in fact to reduce petitioner's food
stamp allotment following a July 29, 1987 decision by the Human Services
Board reducing his benefits.  That decision was affirmed by this Court on
February 3, 1989.  Condosta v. Department of Social Welfare, 151 Vt. 150,
557 A.2d 499 (1989).  While that appeal was pending, petitioner's benefits
were maintained at their prior level, and for more than a year, petitioner
continued to receive food stamps at the higher level rather than the figure
authorized in the Board's decision.
     In September of 1988, another federally mandated change in food stamp
computations increased the standard deduction from $102 to $106 per month,
and notices of this change were sent to all food stamp recipients.  The
Department sent petitioner such notice on September 9, 1988, advising him
that his food stamp allowance would increase from $38 to $43.  At this time,
the Department discovered that the July, 1987 Human Services Board order
reducing his food stamps had never been implemented.  The Department
recalculated petitioner's benefits and on September 10, 1988 mailed him a
notice stating that his benefits would be reduced from $43 to $30.  The
notice of the increase, however, arrived after the notice of the decrease,
creating the present confusion.  After petitioner called his caseworker to
appeal, a corrected notice was sent on October 20, 1988, stating as follows:
            Your Food Stamps for October 1, 1988 have been
          decreased from* $43.00 to $30.00 because the Department
          has implemented the requirements of the Fair Hearing No.
          7995.  (FSM 273.15 q 3,5)

          * Please Note:  The $43.00 figure was the prospective
          benefit based on information in our system after the
          desk review for October 1, 1988.  Once the Fair Hearing
          ruling was implemented the actual change was from $38.00
          (you received September 1988) to $30.00.

          If you have any questions feel free to call this office.

     Despite the proffered explanation, petitioner sought and received a
fair hearing before the Human Services Board.  He argued first that the
Department's reduction notice of September 10, 1988 could not be imple-
mented, apparently on the ground that the notice contained errors which
were the basis for a Supreme Court appeal that should have stayed the
reduction.  Though the argument is not entirely clear in his brief, peti-
tioner appears to argue that he never had clear notice of a reduction in
benefits.
     This contention is without merit.  Petitioner received notice of the
Board's initial reduction decision of July 29, 1987, and that decision was
subsequently affirmed by this Court.  As we stated in Perry v. Dep't of
Employment and Training, 147 Vt. 621, 624, 523 A.2d 1242, 1243-44 (1987),
"The essence of due process is the requirement of notice and an opportunity
to be heard prior to state action resulting in deprivation of a property
interest."  Petitioner's due process rights appear to have been fully
honored throughout the course of the 1987 proceedings.  Nor may it be
argued that because the implementation of the Board's 1987 decision was
delayed through inadvertence, the earlier notice was rendered invalid.
Petitioner suffered no prejudice because the benefit of the delay in
implementation accrued entirely to him.
     Petitioner contends that V.R.C.P. 62 supports his claim that he was
automatically entitled to a stay of the Human Services Board order pending
the present appeal.  The Rules of Civil Procedure, however, are applicable
only to matters pending in a superior or district court, V.R.C.P. 1 and
D.C.C.R. 1; administrative hearings are not included within the purview of
the Rules.  International Assoc. of Firefighters Local #2287 v. City of
Montpelier, 133 Vt. 175, 177, 332 A.2d 795, 796 (1975).  Under the statute
governing appeals from the Board to this Court, 3 V.S.A. { 3091(f), "Pending
the final determination of any [Supreme Court] appeal the terms of the order
involved shall be given effect by the agency except insofar as they relate
to retroactive benefits."  The food stamp regulations also make it clear
that once the Board issues an order, it must be implemented.  Food Stamp
Manual { 273.15(s).
     Petitioner further contends that the Department's computations were in
error, but he did not place in the record before the Board, and has not
demonstrated here, any computational error in the long history of this
matter that has resulted in any diminution of benefits to him.  The
Department's errors have undoubtedly caused confusion and may have cost
petitioner time in unraveling the computations.  But the Department and the
Board have satisfactorily explained what happened, and petitioner has not
pointed to any reversible error.
     Affirmed.


                                        FOR THE COURT:



                                        _________________________________
                                        Associate Justice