                   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

                                         3
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

                                         4
             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

                                            5
             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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