The opinion of the court was delivered by: FISHER
CLARKSON S. FISHER, District Judge.
This matter comes before this court on plaintiffs' motion for partial summary judgment and for class action certification. Plaintiffs have filed a six count complaint against Ann Klein, the Commissioner of the Department of Institutions and Agencies of the State of New Jersey, Thomas Riti, Director of the Division of Public Welfare of the State of New Jersey and William Robinson, Supervisor of the State Food Office in the Bureau of Local Operations, Division of Public Welfare. These defendants are sued in their individual and official capacities. By this motion plaintiffs seek summary judgment as to Count 1. Specifically, plaintiffs seek declaratory and injunctive relief from the failure of State officials to enforce and comply with certain federal requirements pertaining to the Food Stamp Program.
Jurisdiction is asserted under 28 U.S.C. §§ 1331, 1337 and 1343. This court assumes jurisdiction under 28 U.S.C. § 1337.
". . . the limited food purchasing power of low-income households contributes to hunger and malnutrition among members of such households,"
". . . the Nation's abundance of food should be utilized cooperatively by the States, the Federal Government, local governmental units, and other agencies to safeguard the health and well-being of the Nation's population . . .,"
7 U.S.C. § 2011, Congress enacted The Food Stamp Act in 1964. Section 2013(c) of the Act authorizes the Secretary of Agriculture to issue regulations for the effective and efficient administration of the program. The dispute in the instant matter stems from 7 U.S.C. § 2016 and the regulations and instructions issued in connection therewith. Section 2016(a) states, inter alia :
"[the] face value of the coupon allotment which State agencies shall be authorized to issue to any households certified as eligible to participate in the food stamp program shall be in such amount as the Secretary determines to be the cost of a nutritionally adequate diet . . .."
Section 1216(b) states, inter alia :
The participants receive their coupon allotment by obtaining an ATP (Authorization to Purchase) card from the local Food Stamp Office and exchanging it at Food Stamp outlets (banks in New Jersey). On July 29, 1971, the Secretary promulgated regulations in line with the above statutes. 7 C.F.R. § 271.6(d) states:
"(3) The State agency shall, within the limits of the frequency of issuance available to the household under subparagraph (4) of this paragraph, permit any eligible household . . . to elect at the time of issuance to receive a coupon allotment having a face value of all, three-quarters, one-half or one-quarter of the monthly coupon allotment authorized in accordance with § 271.5, and to have such household pay an amount that shall be in the same ratio to the total purchase requirement as the coupon allotment chosen is to the total monthly coupon allotment. (4) The State agency shall insure that eligible households are offered the frequency of coupon issuance that is best geared to the frequency of their receipt of income: Provided, That at a minimum, all project areas shall make provision for a monthly and semi-monthly schedule of issuance: Provided further, That, the State agency shall insure that each eligible household is offered the option at the time of certification of choosing to receive coupons on a semi-monthly basis."
(The election offered in (3) above is hereinafter referred to as the "variable purchase option".)
Following the promulgation of these regulations, the Food and Nutrition Service of the Department of Agriculture issued an administrative instruction entitled Implementation of Variable Purchase in an ATP Card System. See FNS Instr. 734-6 IV and VI.
These instructions require the variable purchase options be listed on the ATP cards. On April 11, 1975, 7 C.F.R. § 271.6(d)(3) was amended, adding the following language:
"The State agency shall require that, as soon as possible but not later than July 1, 1975, the variable purchase ATP card used to implement this provision provide a signature space for each variable purchase option available to the household."
Plaintiff Joseph Colan of Glassboro submitted a signed application for food stamps at an interview with a food stamp certifier on March 12, 1975. At this interview he requested that his ATP cards be issued semi-monthly. On March 15, 1975 plaintiff received his first ATP card representing an entire monthly allotment rather than the semi-monthly allotment requested. Plaintiff had until March 20, 1975 to pay $95 for $154 worth of food stamps. He was unable to secure the entire amount of funds necessary until March 24th. (See Affidavit of Joseph Colan).
To implement the variable purchase option, the State of New Jersey, with the approval of the Food and Nutrition Service, instituted an "immediate exchange" program. Under this program:
"[those] households receiving one card monthly will be afforded the right to immediate exchange of the current month's ATP card for another card, manually issued, bearing 25%, 50% or 75% of the established monthly purchase requirement and coupon allotment for that household. Households receiving two cards monthly (each at 50%) will be afforded the right to immediate exchange of either or both of the cards for an equal number of other cards, manually issued, bearing 25% of the established monthly purchase requirement and coupon allotment for that household.
The above exchanges may be made either by personal presentation and surrender of the original ATP card(s) with request for exchange or by mail submission of the original ATP card(s) with request for exchange."
Food Stamp Plan of Operation for the State of New Jersey, Amendment No. 1, approved by F.N.S. January, 1973. To inform food stamp program participants of this immediate exchange variable purchase option, the State of New Jersey notified each existing user and newly certified recipients by a circular letter explaining how the exchange option works and where to send or bring their ATP card. Another such notice is sent to each recipient on a quarterly basis.
See Defendants' Brief, Appendices 1a-8a.
The defendants assert two legal arguments in opposition to plaintiffs' summary judgment motion. The first argument contends that the F.N.S. Instructions requiring the ATP cards to reflect the variable purchase option are invalid as not having ...