No. 12-0775 - Patricia Hudson v. Karen L. Bowling, Secretary, West Virginia Department
of Health & Human Resources, and Stephen M. Baisden, State Hearing Officer, West
Virginia Department of Health & Human Resources
                                                                             FILED
                                                                         November 6, 2013

                                                                        RORY L. PERRY II, CLERK

                                                                      SUPREME COURT OF APPEALS

                                                                          OF WEST VIRGINIA


LOUGHRY, Justice, concurring:

              I agree with the majority’s reversal of the circuit court’s order affirming the

Hearing Officer’s decision to uphold the DHHR’s repayment claim against the petitioner for

the overpayment of SNAP benefits. Having reviewed the record and the parties’ arguments

on appeal, I agree that the DHHR failed, in this particular case, in its burden to prove by a

preponderance of the evidence at the administrative hearing that the petitioner and her

husband were “living together” during the targeted repayment period. That said, I write

separately to emphasize that the majority’s opinion should not be read as discouraging or

attempting to frustrate the DHHR’s investigation and recoupment of SNAP benefit

overpayments, which are critical to the fulfillment of the Congressional intent of these vital

benefits.



              SNAP benefits are intended “to promote the general welfare [and] to safeguard

the health and well-being of the Nation’s population by raising levels of nutrition among

low-income households.” 7 U.S.C. § 2011; see also 7 C.F.R. § 271.1(a). The overpayment

of SNAP benefits, rather than furthering Congress’s intent, results in an unwarranted


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diversion of public funds that could be directed to qualified beneficiaries. In fact, Congress

has directed that

              [e]ach State agency shall proceed against an individual alleged
              to have engaged in such activity either by way of administrative
              hearings, after notice and an opportunity for a hearing at the
              State level, or by referring such matters to appropriate
              authorities for civil or criminal action in a court of law.

7 U.S.C. § 2015(b)(2). Accordingly, Congress’s intent and directive, as well as the public

interest, are well-served through the DHHR’s pursuit of the repayment of overpaid benefits,

especially when the failure to recoup benefits that were erroneously paid results in a

depletion of public resources. Indeed, “[v]igorous efforts to protect the integrity of [public

assistance] programs are necessary to assure that the public’s dollars go only to those whose

real need qualifies them to receive this money.” Louis B. v. Coluatti, 606 F.2d 392, 402 (3d

Cir. 1979).



              In this particular case, the DHHR fell short of its evidentiary burden and

appears to have set its investigation off on the wrong foot through oversights in the infancy

of the investigation.1 Its investigation appeared cursory and starkly lacking in corroborative


       1
        Having undertaken a thorough review of the record on appeal, the administrative
hearing transcript reveals that the Department’s investigator believed that the petitioner and
her husband were “living together” based upon information provided by another Department
employee who said that the husband “lived in the back.” This belief led the investigator to
pursue the repayment claim against the petitioner, whose SNAP benefits had been calculated
based upon the petitioner being the sole person in her “household.” The hearing transcript
further reveals that at the time of the hearing, the investigator was completely unaware that

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proof which could have been obtained with very little additional investigative effort.2

Moreover, the DHHR failed in ensuring that the petitioner received adequate notice and

opportunity to challenge its investigation through the form of its notice and neglect in turning

over the petitioner’s file. As a result, I likewise concur in the majority’s new syllabus points

regarding the DHHR’s obligation to provide the recipient with both adequate notice and his

or her entire file, as well as the dismissal of the overpayment claim where the recipient is

prejudiced by the failure of the DHHR to follow those safeguards. The majority’s new

syllabus points will ensure that the DHHR’s investigatory efforts are not rendered for naught

because the benefit recipient was not provided the required due process. The DHHR’s

investigatory efforts, in general, are to be applauded and encouraged despite the fact that

those efforts were unsatisfactory in this particular instance.




the petitioner’s husband had actually lived in a camper on the petitioner’s property—at least
for part of the repayment period. When questioned about the camper, the investigator
conceded that he had not seen the Department’s “case comment” referencing the fact that the
husband lived in a camper, although the investigator admitted that he had access to the “case
comments.”
       2
         For reasons that are unclear, the Department’s investigation appeared to be restricted
to largely documentary proof which, although certainly relevant and probative evidence, fails
to provide any substance regarding the realities of the petitioner and her husband’s living
situation. For example, what might the investigation have revealed had the Department’s
investigator interviewed the petitioner’s neighbors to inquire as to whether the petitioner and
her husband were routinely seen in and about the petitioner’s home during the relevant time
period? This type of inquiry would appear to be particularly important in cases such as this,
where the lives of the petitioner and her husband are unsurprisingly intertwined by virtue of
their lengthy marriage, notwithstanding their current separation.

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              I would be remiss if I did not further highlight, as did the majority, that the

insufficient investigatory efforts of the DHHR in the case below were unfortunately mirrored

in the efforts of its attorney before this Court. The case at bar presented this Court with an

opportunity to write in an area of the law that had not been previously addressed. Generally,

in such a case, one would expect each side to file a well-researched brief containing a

thorough discussion of the relevant law as it related to the party’s respective position on the

issues to be considered on appeal. For reasons that are not readily apparent, the DHHR

chose, instead, to file a three and a half page summary response. While Rule 10(e) of the

West Virginia Rules of Appellate Procedure allows a party to file a summary response in lieu

of a full appellate brief, the summary response must still meet certain minimal requirements,

as follows:

              Instead of a brief, the respondent may file a summary response
              . . . [which] must contain . . . appropriate citations to the record
              on appeal, exhibiting clearly the points of fact and law being
              presented and the authorities relied on . . . . A party who files a
              summary response is deemed to have consented to the waiver of
              oral argument.

(Emphasis added.). In contravention of this Rule, the DHHR’s summary response fails to

contain even a single citation to any legal authority or to the record. As a result, the DHHR

disappointingly offered very little to support its position in this matter.3


       3
        Notwithstanding the Department’s waiver of oral argument by filing a summary
response, the Department was allowed to present oral argument under Rule 20(d) of the
appellate rules. Regrettably, oral argument did nothing to rehabilitate the Department’s
meager summary response.

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             Therefore, for the reasons set forth above, I respectfully concur in the

majority’s opinion and conclusions.




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