Sandra Ethel McCowen v. William Jamieson, Jr.

724 F.2d 1421 Sandra Ethel McCOWEN, et al., Plaintiffs-Appellees, v. William JAMIESON, Jr., et al., Defendants-Appellants. No. 83-1961. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 18, 1983. Decided Feb. 2, 1984. Robert S. Segelbaum, Phoenix, Ariz., for defendants-appellants. Kenneth L. Schorr, Edward M. Ober, Phoenix, Ariz., for plaintiffs-appellees. Appeal from the United States District Court for the District of Arizona. Before DUNIWAY, TIMBERS * and SKOPIL, Circuit Judges. TIMBERS, Circuit Judge: 1 Certain officials of the State of Arizona appeal from a summary judgment entered April 21, 1983 on motions of appellees in the District of Arizona, Charles L. Hardy, District Judge, directing, inter alia, that the Arizona Department of Economic Security (ADES) provide replacement food coupons to those entitled to receive them within ten days after the report of non-delivery had been received by ADES. 2 For the reasons stated below, we remand the case to the district court with directions to add the Secretary of the United States Department of Agriculture as a necessary party. I. 3 This appeal arises out of a class action challenging the distribution of…

Certain officials of the State of Arizona appeal from a summary judgment entered April 21,1983 on motions of appellees in the District of Arizona, Charles L. Hardy, District Judge, directing, inter alia, that the Arizona Department of Economic Security (ADES) provide replacement food coupons to those entitled to receive them within ten days after the report of non-delivery had been received by ADES.

For the reasons stated below, we remand the case to the district court with directions to add the Secretary of the United States Department of Agriculture as a necessary party.

I.

This appeal arises out of a class action challenging the distribution of food coupons by ADES. On July 24, 1981, a complaint was filed against state officials in ADES responsible for administering the food coupon program in Arizona. One of the claims involved replacement of lost food coupons. An injunction was sought to restrain ADES from continuing to refuse promptly to reissue food coupons lost in the mail. Federal regulations then in effect required replacement of food coupons within five days after the report of non-delivery was received by ADES. 1 ADES admittedly did not comply with this regulation.…

(dissenting):

I dissent.

The applicable regulation, 7 C.F.R. § 272.4 (e)(l)(i) reads, in part:

We must presume that the required notice to FNS has been given. It is presumed that government officials obey the law and perform the duties imposed on them by law. See, e.g., Federal Communications Commission v. Schreiber, 1965, 381 U.S. 279, 296 , 85 S.Ct. 1459, 1470 , 14 L.Ed.2d 383 applying *1425 “the presumption to which administrative agencies are entitled — that they will act properly and according to law;” United States v. Crusell, 1871, 81 U.S. (14 Wall.) 1 , 4, 20 L.Ed. 821 ; In re Hergenroeder, 9 Cir.1977, 555 F.2d 686 . Moreover, because steps have not been taken to join the United States or appropriate federal officials, we must presume that FNS has not requested that action be taken to join the United States or such officials.

In short, we must presume that FNS has been afforded notice and an opportunity to participate. Neither it nor the United States nor any Federal official is knocking at the door. Under these circumstances, I see no reason for us to require the trial court to open the door and go out and look for federal agencies or officials and invite them in.

I…