Cynthia D. Gentry v. Linda Rudolph, Commissioner of the Tennessee Department of Human Services - Concurring ( 1995 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE
_______________________________________________
FILED
October 4, 1995
CYNTHIA D. GENTRY,
Cecil Crowson, Jr.
Appellate Court Clerk
Plaintiff-Appellant,
Vs. Davidson Chancery # 94-2563
C.A. No. 01A01-9504-CH-00155
LINDA RUDOLPH, Commissioner
of the Tennessee Department of
Human Services,
Defendant-Appellee.
_________________________________________________________________________
FROM THE CHANCERY COURT FOR DAVIDSON COUNTY
THE HONORABLE C. ALLEN HIGH, CHANCELLOR
Rural Legal Services of Tennesse, Inc.
William Bush of Cookeville, For Appellant
Charles W. Burson, Attorney General and Reporter
Lisa A. Yacuzzo, Assistant Attorney General
For Appellee
AFFIRMED AND REMANDED
Opinion filed:
W. FRANK CRAWFORD, JUDGE
CONCUR:
HEWITT P. TOMLIN, JR.,
PRESIDING JUDGE, W.S.
ALAN E. HIGHERS, JUDGE
Plaintiff, Cynthia D. Gentry, appeals from the order of the chancery court
that affirmed the final administrative order of the Department of Human Services
(DHS). The controversy in this case arose from the receipt by Mrs. Gentry's
husband of a lump sum social security disability payment in July, 1991. At the
time of the payment, Mrs. Gentry was the recipient of Aid for Dependent
Children (AFDC) benefits. DHS determined that the lump sum payment
constituted income sufficient to render Mrs. Gentry ineligible for AFDC benefits
for a period of four months. Mrs. Gentry was notified by DHS that her benefits
would be terminated for four months because of the receipt of the lump sum
social security payment. DHS also sent Mrs. Gentry a termination notice which
stated:
If you think we made a mistake on your application or
your benefits, you can have a chance to tell us why at
a fair hearing. This is your right to appeal. At the fair
hearing, a different person will hear why you think we
are wrong. You also can meet with a supervisor to
discuss the action(s) taken on your application or
benefits. . . . To get a fair hearing, contact the Human
Services Office within ninety days of the date of this
notice . . . You can file an appeal directly to the state
office of the Department of Human Services. The
county office will help you to do this. For free legal
help contact your local legal aid office at [legal aid
name and address].
After receiving the notice of termination, Mrs. Gentry received AFDC
checks for August and September, 1991, but returned the checks to DHS
uncashed. In July, 1993, DHS informed Mrs. Gentry that it had made over-
payments of AFDC benefits because of the lump sum payment in 1991. Ms.
Gentry timely requested a fair hearing concerning the claim of over-payments.
On August 11, 1993, DHS informed Mrs. Gentry's attorney that this claim would
be purged because Mrs. Gentry did not cash the checks. Subsequently, on
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August 18, 1993, DHS sent Mrs. Gentry another notice of an over payment in the
amount of $264.00 that was made to Mrs. Gentry during the time that she was
ineligible for benefits. Mrs. Gentry also sought a fair hearing regarding that over-
payment. Prior to the hearing, DHS notified Mrs. Gentry that it was suspending
the claim and did not intend to pursue collection of the claim in the future.
By letter dated August 13, 1993, Mrs. Gentry's attorney notified DHS that
Mrs. Gentry claimed an under-payment of AFDC benefits by virtue of the
termination of her payments in 1991 due to the lump sum payment. DHS
responded that Mrs. Gentry could not appeal the termination of the AFDC
benefits in 1991 because she did not request an appeal within 90 days as
required by regulation.
An administrative hearing was held on May 2, 1994, concerning the over-
payment. After the hearing, the initial order determined that the over-payment
issue was moot, because the claim was suspended and there was no intention
to enforce collection. As to Mrs. Gentry's claim of wrongful termination of
benefits in 1991, the order states:
The Appellant says in the affidavit, "I did not file a
written appeal request from the August 1991 notice of
AFDC cut off because the Jackson County
Department of Human Services caseworker's
statement gave me the impression that it would do no
good.
Mr. Bush stated that the Appellant did not file a written
request for appeal. He immediately questioned the
Jackson County caseworker if the Appellant
contacted the County Office within 90 days of the
August 1991 AFDC notice of cut-off. the Jackson
County worker stated that Mrs. Gentry, the Appellant,
has never contacted her regarding a request to
appeal. Mr. Bush then asked the caseworker if Mrs.
Gentry had any other contact with the County Office
and the caseworker answered him that "yes, she
comes in periodically for her reviews."
The DHS final order, entered June 27, 1994, "adopts the decision of the
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hearing officer and incorporates the findings of fact and conclusions of law
contained in the initial order entered on the 16th day of June, 1994, as though
fully set out therein."
Mrs. Gentry filed a complaint in the Davidson County Chancery court
seeking judicial review of DHS's suspension of its over-payment claim and refusal
to reimburse her for under-payment of AFDC benefits. Upon review of the entire
administrative record and argument of counsel, the chancery court found "that
the matter of the over-payment of $254.00 was moot because the department
had pledged not to collect it and the matter of the under-payment was barred
by the failure of the plaintiff to appeal the closure of her AFDC case in a timely
manner." The chancery court's order confirmed the final administrative order
and dismissed the plaintiff's complaint seeking judicial review.
Mrs. Gentry's brief presents four issues for review, but we think that these
issues can be combined into two determinative issues. The first issue is whether
the trial court erred in affirming the final administrative order which held that the
claim for over-payment was moot because the DHS did not seek repayment.
Mrs. Gentry argues that the appeal regarding the over-payment is not moot
because she could possibly be subject to future collection efforts by DHS.
Mrs. Gentry overlooks the fact that there is no present collection effort. In
LaRouche v. Crowell, 709 S.W.2d 585 (Tenn. App. 1985), the Court stated:
Using terms like "mootness", "justiciability", and
"actual case or controversy" rather indiscriminately
and interchangeably, courts have drawn the line on
deciding hypothetical, academic or abstract
questions. Even under a statute making the equitable
action for a declaratory judgment available to courts
in general, T.C.A. § § 29-14-101-113 (1980), there must
still be a showing of a "'substantial controversy,
between parties having adverse legal interests, of
sufficient immediacy and reality to warrant a
declaratory judgment.'" Evers v. Dwyer, 358 U.S. 202,
204, 79 S. Ct. 178, 179, 3 L. Ed. 2d 222 (1959) (quoting
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Maryland Casualty Co. v. Pacific Coal & Oil Co., 312
U.S. 270, 273, 61 S. Ct. 510, 512, 85 L. Ed. 826 (1941)).
If, because of the passage of time a case has lost its
character as a present, live controversy, or the
questions involved have been deprived of their
practical significance, the courts have refused to
decide them because they are then "moot" or
"academic." See Perry v. Banks, 521 S.W.2d 549, 550
(Tenn. 1975).
709 S.W.2d at 587.
It is clear in the case sub judice that DHS is making no collection effort,
and therefore, there is no "live controversy" between the parties. The chancellor
did not err in affirming the final administrative order in this regard.
The second issue for review is whether the chancery court erred in
affirming the DHS determination that Mrs. Gentry's claim for under-payment of
AFDC benefits was barred by failure to appeal in a timely manner. The right of
AFDC recipients to a hearing when their benefits are affected is controlled by
45 C.F.R. 205.10, which provides in pertinent part:
(5) An opportunity for a hearing shall be granted to
any applicant who requests a hearing because his or
her claim for financial assistance (including a request
for supplemental payments under §§ 233.23 and
233.27) is denied, or is not acted upon with reasonable
promptness, and to any recipient who is aggrieved by
any agency action resulting in suspension, reduction,
discontinuance, or termination of assistance . . . .
* * *
(i) A request for a hearing is defined as a clear
expression by the claimant (or his authorized
representative acting for him), to the effect that he
wants the opportunity to present his case to higher
authority.
(ii) The freedom to make such a request shall not be
limited or interfered with in any way. The agency may
assist the claimant to submit and process his request;
(iii) The claimant shall be provided reasonable time,
not to exceed 90 days, in which to appeal an agency
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action;
45 C.F.R. § 205.10 (1992).
The record is clear and uncontested that Mrs. Gentry determined that she
would not seek a hearing of the decision to terminate the AFDC payment. She
stated in her affidavit that she did not appeal because she thought an appeal
would be futile. Nothing was heard from Mrs. Gentry until approximately two
years later when DHS indicated its intention to collect an alleged over-payment.
There is substantial and material evidence that Mrs. Gentry did not "clear[ly]
express[ ]" her request to "present her case to [a] higher authority" within 90 days
of the termination of her AFDC benefits. The record supports the commissioner's
determination; thus, the trial court did not err in affirming that decision.
The order of the trial court affirming the final order and dismissing the
complaint for judicial review is affirmed. The case is remanded to the trial court
for such further proceedings as may be necessary and costs of appeal are
assessed against the appellant.
____________________________________
W. FRANK CRAWFORD, JUDGE
CONCUR:
_________________________________
HEWITT P. TOMLIN, JR.,
PRESIDING JUDGE, W.S.
_________________________________
ALAN E. HIGHERS, JUDGE
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