           IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 September 2013 Term

                                 _________________                 FILED
                                                               November 6, 2013
                                    No. 12-0775                   released at 3:00 p.m.
                                 _________________                RORY L. PERRY II, CLERK
                                                                SUPREME COURT OF APPEALS
                                                                    OF WEST VIRGINIA



                                PATRICIA HUDSON,

                              Petitioner Below, Petitioner


                                           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,

                           Respondents Below, Respondents


       ____________________________________________________________

                  Appeal from the Circuit Court of Kanawha County

                      The Honorable James C. Stucky, Judge

                             Civil Action No. 12-AA-5


               REVERSED AND REMANDED WITH DIRECTIONS

        ___________________________________________________________

                              Submitted: October 16, 2013

                               Filed: November 6, 2013


Bruce Perrone, Esq.	                                          Patrick Morrisey, Esq.
Legal Aid of West Virginia	                                   Attorney General
Counsel for Petitioner	                                       Michael Jackson, Esq.
                                                              Assistant Attorney General
                                                              Counsel for Respondents

JUSTICE WORKMAN delivered the Opinion of the Court.

JUSTICE LOUGHRY concurs and reserves the right to file a concurring opinion.
                               SYLLABUS BY THE COURT


       1.   “Under W. Va. Code, 29A-1-2 [1964], the Administrative Procedures Act does

not apply to the Department of Welfare.” Syl. Pt. 1, State ex rel. Ginsberg v. Watt, 168 W.

Va. 503, 285 S.E.2d 367 (1981).



       2. “A writ of certiorari in the Circuit Court of Kanawha County is the proper means

for obtaining judicial review of a decision made by a state agency not covered by the

Administrative Procedures Act.” Syl. Pt. 2, State ex rel. Ginsberg v. Watt, 168 W. Va. 503,

285 S.E.2d 367 (1981).



       3.   “‘[T]he circuit court has a large discretion in awarding [a writ of certiorari] . . .

and, unless such discretion is plainly abused, this Court cannot interfere there with.’ Syllabus

Point 1, in part, Michaelson v. Cautley, 45 W. Va. 533, 32 S.E. 170 (1898).” Syl. Pt. 1,

Wysong ex rel. Ramsey v. Walker, 224 W. Va. 437, 686 S.E.2d 219 (2009).



       4.    “‘On certiorari the circuit court is required to make an independent review of

both law and fact in order to render judgment as law and justice may require.’ Syllabus Point

3, Harrison v. Ginsberg, 169 W. Va. 162, 286 S.E.2d 276 (1982).” Syl. Pt. 2, Wysong ex rel.

Ramsey v. Walker, 224 W. Va. 437, 686 S.E.2d 219 (2009).



                                              -i­
       5.   “‘Unless otherwise provided by law, the standard of review by a circuit court in

a writ of certiorari proceeding under W. Va. Code § 53-3-3 (1923) (Repl. Vol. 2000) is de

novo.’ Syllabus Point 2, State ex rel. Prosecuting Attorney of Kanawha County v. Bayer

Corp., 223 W. Va. 146, 672 S.E.2d 282 (2012).” Syl. Pt. 3, Wysong ex rel. Ramsey v.

Walker, 224 W. Va. 437, 686 S.E.2d 219 (2009).



       6.     “When, after judgment on certiorari in the circuit court, a writ of error is

prosecuted in this court to that judgment, a decision of the circuit court on the evidence will

not be set aside unless it clearly appears to have been wrong.” Syl., in part, Snodgrass v. Bd.

of Educ. of Elizabeth Indep. Dist., 114 W. Va. 305, 171 S.E. 742 (1933).



       7.   Where the West Virginia Department of Health & Human Resources provides

notice of an overpayment to an individual receiving food stamp benefits pursuant to the

Supplemental Nutrition Assistance Program, 7 United States Code §§ 2011 to 2036(a)

(2012), said notice must contain, at a minimum: (1) an explanation of the proposed action

and the reason therefor, in simplified form and easily understandable language; and (2) a

reference to all applicable sections of the DHHR Common Chapters Manual. Where the

notice does not comply with these requirements, the burden is on the Department to establish,

by a preponderance of the evidence, that the food stamp recipient was not prejudiced thereby


                                              -ii­
in his or her ability to contest the overpayment claim. Where the trier of fact concludes that

the recipient was in fact prejudiced, the overpayment claim shall be dismissed. Where the

trier of fact concludes that the recipient was not prejudiced, the overpayment claim may

proceed to decision on the merits.



       8.   Where the West Virginia Department of Health & Human Resources provides

notice of an overpayment to an individual receiving food stamp benefits pursuant to the

Supplemental Nutrition Assistance Program, 7 United States Code §§ 2011to 2036(a) (2012),

and the food stamp recipient requests a hearing, the recipient has a right of access to his or

her entire case file. Where the Department unreasonably obstructs or impedes a recipient’s

right of access to the file, the burden is on the Department to establish, by a preponderance

of the evidence, that the food stamp recipient was not prejudiced thereby in his or her ability

to contest the overpayment claim. Where the trier of fact concludes that the recipient was

in fact prejudiced, the overpayment claim shall be dismissed. Where the trier of fact

concludes that the recipient was not prejudiced, the overpayment claim may proceed to

decision on the merits.



       9. A determination of whether individuals “live together” within the meaning of the

Supplemental Nutritional Assistance Program, 7 United States Code § 2012(n)(2) (2012),


                                             -iii­
requires the application of reasonable judgment based on all relevant circumstances of a

particular living arrangement. Evidence that individuals use the same mailing address may

be considered, but is not, in and of itself, conclusive of the issue.




                                              -iv­
Workman, Justice:


       In this case involving an alleged overpayment of food stamp benefits under the

Supplemental Nutrition Assistance Program, 7 United States Code §§ 2011to 2036(a) (2012)

(hereinafter “SNAP”)1, the respondent, Karen L. Bowling, Secretary, West Virginia

Department of Health & Human Resources (hereinafter “DHHR” or “the Department”),2



       1
        Under SNAP, low-income households receive benefits “which will permit [them] to
obtain a more nutritious diet through normal channels of trade by increasing food purchasing
power for all eligible households who apply for participation.” 7 U.S.C. § 2011. To this end,
Congress set forth the following declaration of policy, in relevant part:

              It is declared to be the policy of Congress, in order to promote
              the general welfare, to safeguard the health and well-being of
              the Nation’s population by raising levels of nutrition among
              low-income households. Congress finds that the limited food
              purchasing power of low-income households contributes to
              hunger and malnutrition among members of such households.
              Congress further finds that increased utilization of food in
              establishing and maintaining adequate national levels of
              nutrition will promote the distribution in a beneficial manner of
              the Nation’s agricultural abundance and will strengthen the
              Nation’s agricultural economy, as well as result in more orderly
              marketing and distribution of foods.

Id.
       2
        Since the docketing of this appeal, Karen L. Bowling has been appointed as
Secretary, West Virginia Department of Health & Human Resources, succeeding Michael
J. Lewis, originally a named respondent herein. Rule 41 of the West Virginia Rules of
Appellate Procedure provides, in relevant part, that “[w]hen a public officer is a party to an
appeal or other proceeding in the Supreme Court in his official capacity and during its
pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his
successor is automatically substituted as a party. Proceedings following the substitution shall
be in the name of the substituted party[.]”

                                              -1­
maintains that the petitioner, Patricia Hudson (hereinafter “the petitioner”), and her husband,

Harold Hudson (hereinafter “Mr. Hudson”), were living together for seventeen months after

the petitioner had filed to receive food stamps as a separated spouse in a one-person

household. During an administrative hearing, DHHR presented evidence demonstrating that

the petitioner and Mr. Hudson used the same mailing address during the relevant period; that

Mr. Hudson lived on the petitioner’s property, although not in her home, for the first four

months of the period; that Mr. Hudson’s name was not removed from either the petitioner’s

utility bills or the couple’s bank account; and that the petitioner drove Mr. Hudson to medical

appointments, thus demonstrating that the two continued to function as a couple. Hearing

examiner Stephen M. Baisden (hereinafter “respondent Baisden” or “the hearing examiner”)

concluded in relevant part that

                      2. Department’s representative submitted evidence to
              indicate [the petitioner] and her spouse lived together during the
              repayment period of May 2010 to September 2011. They shared
              utilities, they shared liquid assets, and they shared the property
              at 7856 Ridgeview Nellis Road.

                     3. Neither [the petitioner] nor her spouse submitted
              sufficient evidence to support their claim that they had separate
              residences.



       On certiorari, the Circuit Court of Kanawha County reviewed respondent Baisden’s

findings of fact and conclusions of law and held that “it is logical to conclude that Petitioner

and her spouse lived in the same household during the repayment period of May 2010 to


                                              -2­
September 2011 . . . [a]ccordingly, the Court concludes that the Respondent’s [sic]

establishment of a repayment claim against Petitioner’s SNAP benefits is correct.” This

appeal followed.



       Upon careful consideration of the parties’ briefs, the oral arguments, the appendix

record, and the applicable law, we reverse the judgment of the circuit court and remand this

case for entry of an order granting the petitioner’s petition for a writ of certiorari and

dismissing the DHHR’s overpayment claim.



                     I. FACTUAL AND PROCEDURAL HISTORY

       At the time of the disallowance at issue in this case, the petitioner was sixty-four years

old and had an income of $697.00 per month ($8,364.00 per year) from Social Security

Disability and Supplemental Security Income benefits. In addition, following her application

in May, 2010, for SNAP benefits, which application recited that she was the sole resident in

her home and had no income other than her own, she received $146.00 per month in food

stamps. The petitioner lived in a home which had been financed for her by her son; pursuant

to an installment agreement, she pays $250.00 per month on the loan.3


       3
       Although both the petitioner and Mr. Hudson lived in the home at the time it was
purchased, Mr. Hudson’s name was not placed on the deed due to what the petitioner
characterized as “his alcoholism and erratic behavior.” Rather, the petitioner and her
daughter were, and are, the owners of the property. The petitioner’s son testified that his
mother has never missed a payment under the installment agreement.

                                              -3­
       In late April, 2009 or 2010,4 the petitioner ordered her husband out of the house due

to his drinking, telling him he was welcome to come back whenever he quit. Thereafter,

from May, 2010, through August, 2010, Mr. Hudson lived in a camper that was owned by

his brother but located on the petitioner’s property.5 Mr. Hudson ran an extension cord from

the petitioner’s home to the camper, and therefore his electricity usage was included in the

petitioner’s electricity bill for the house.6 The camper did not have a water hookup, and Mr.

Hudson showered at his daughter’s home. His daughter did most of his laundry and prepared

his meals. The petitioner testified, without contradiction, that from the moment she threw

Mr. Hudson out of the home, he never set foot in it again, even to use the bathroom or the

telephone. He kept no clothes, toiletries or personal items in the petitioner’s home.



       In August, 2010, Mr. Hudson began to live at his mother’s home, which was vacant

following her admission to a nursing facility. Following her death in November, 2010, and

as a result of some family acrimony which ensued, Mr. Hudson’s brother removed the



       4
       The testimony of record evidences constant confusion on the part of the witnesses as
to whether the petitioner and Mr. Hudson separated in late April, 2009, or late April, 2010.
However, this confusion as to dates is irrelevant, since the overpayment period at issue is
from May, 2010, through September, 2011.
       5
        See n. 4 supra. The record is clear that wherever Mr. Hudson may have hung his hat
prior to May, 2010, it was then that he began living in the camper and it was then that the
petitioner applied for food stamps as a separated spouse in a one-person household.
       6
        Both the petitioner and Mr. Hudson testified that he reimbursed his wife for “some”
of the electric bill attributable to his usage in the camper.

                                             -4­
camper from the petitioner’s property. Thereafter, Mr. Hudson lived a peripatetic existence,

staying at various times at the homes of his daughter, his son, his stepdaughter, his sister, and

at other locations in Boone County, West Virginia.



       The petitioner admitted that she never removed Mr. Hudson’s name from the utility

accounts for electricity and water, and that she never removed his name from the couple’s

joint bank account.7 Further, the evidence showed that Mr. Hudson listed the petitioner’s

address as his own when he renewed his driver’s license in 2011. In that regard, he testified

that he had tried to list his separate post office box address, but was told that he had to have

a physical address; accordingly, for lack of any alternative, he listed the petitioner’s address.

Additionally, both the petitioner and Mr. Hudson continued to list the same telephone

number on official forms, although Mr. Hudson was not permitted to come into the

petitioner’s home to make or receive calls.8 Finally, the evidence showed that, separated or

not, the petitioner continued to drive Mr. Hudson to doctor’s appointments, and that both

listed the same address on medical and travel reimbursement forms.




       7
        The petitioner testified that she maintained the status quo as to bills and the bank
accounts for two reasons. First, she maintained hope that in the future Mr. Hudson would
quit drinking and return home. Second, “[Mr. Hudson] and I have bad credit, and I really
didn’t think that we’d ever be able to establish another bank account[.]”
       8
       The petitioner testified that if any call came to her home for Mr. Hudson, she took
a message and saw to it that he received it.

                                               -5­
       Shortly after Mr. Hudson moved into the camper in late April, 2010, the petitioner

applied for and began receiving SNAP benefits as a separated spouse in a one-person

household. More than a year later, in June, 2011, while clearing NEMT9 files, a DHHR

worker noticed that the petitioner “was always taking [Mr. Hudson] to the doctor. The

worker also noted that they had the same physical address.” Thereafter, a repayment referral

was made to the proper benefits unit, which determined that the petitioner and Mr. Hudson

were both in the same “income group” and therefore “[b]oth of their incomes [should have

been] considered when determining the SNAP or food stamp benefit amount.” Since the

petitioner’s SNAP benefits had been determined on the basis of her income alone, DHHR

determined that she had been overpaid a total of $1,985.00 over the course of seventeen

months.



       On September 8, 2011, DHHR sent the petitioner a notice of overpayment, giving the

following reason for its action: “We have determined that you were issued more SNAP

benefits than you were eligible to receive during the period 05/01/2010 to 09/30/2011

because of other eligibility factors.” (Emphasis supplied.) After receiving this notice, the

petitioner requested a hearing. Following three unsuccessful attempts by her representative


       9
        NEMT is the acronym for Non-Emergency Medical Transportation. Pursuant to §
19.3 of the West Virginia Income Maintenance Manual, “[r]ecipients of Medicaid . . . may
request reimbursement for the cost of transportation associated with receiving medical
services. Payments are made to the client or the transportation provider and can include
meals, lodging, parking and turnpike tolls when required.”

                                            -6­
to obtain her file,10 the petitioner went to the DHHR office and staged a mini “sit-in” for

several hours until the file was finally provided to her.



       At the hearing, DHHR presented the testimony of two witnesses (one in rebuttal) and

introduced seventeen exhibits; the petitioner presented the testimony of five witnesses and

introduced fifteen exhibits.    Significantly, at the conclusion of the rebuttal witness’

testimony, the Repayment Investigator conducting the hearing for DHHR appeared to

concede that although DHHR had believed in good faith that the petitioner and Mr. Hudson

“lived together in the same residence, the same dwelling, but separate parts of the building,”

the evidence had not borne that out.11

       10
        DHHR regulations specify that upon notice of adverse action and a request for
hearing, a recipient has a right of access to “his or her entire case file.”
       11
         The investigator explained that DHHR had been told by Lorintha Hiles, a
caseworker, that Mr. Hudson “lived behind” the petitioner, from which DHHR inferred that
the petitioner lived in the front rooms of her home and Mr. Hudson lived in the back rooms.
However, in her testimony at the hearing, Ms. Hiles conclusively rebutted that inference:

              Q: At any point in time did Ms. Hudson or Mr. Hudson, either
              one, tell you that they lived in the same house when they were
              separated?

              A: They gave me the impression that they didn’t live together
              because her income would have counted against his medical
              card.

              ....

              Q:     Let me make sure.      You’re saying that you got the
                                                                                 (continued...)

                                             -7­
       Notwithstanding this concession, respondent Baisden affirmed DHHR’s overpayment

claim, concluding that the petitioner had not submitted sufficient evidence to support her

claim that she and Mr. Hudson had separate residences because the two “shared utilities, they

shared liquid assets, and they shared the property at 7856 Ridgeview Nellis Road.” On

petition for writ of certiorari, the Circuit Court of Kanawha County affirmed the DHHR’s

overpayment claim, finding on the basis of the evidence presented that it is “logical to

conclude that Petitioner and her spouse lived in the same household.”



       Significantly, neither respondent Baisden nor the circuit court made any findings of

fact or conclusions of law with respect to two threshold issues raised by the petitioner and

argued by her throughout these proceedings: whether the DHHR’s notice of overpayment

was so inadequate as to deprive the petitioner of due process of law; and whether the

DHHR’s failure to promptly turn over the petitioner’s file obstructed her due process right

of access to it.




       11
            (...continued)
                  impression he lived in a camper separate, on a separate part of
                  his property.

                  A: It would have had to be a separate dwelling for his medical
                  card. Otherwise, her income would have counted against his
                  medical card.

                                                -8­
                              II.   STANDARD OF REVIEW


       This Court has held that “[u]nder W. Va. Code, 29A-1-2 [1964], the Administrative

Procedures Act does not apply to the Department of Welfare.” Syl. Pt. 1, State ex rel.

Ginsberg v. Watt, 168 W. Va. 503, 285 S.E.2d 367 (1981). Rather, “[a] writ of certiorari in

the Circuit Court of Kanawha County is the proper means for obtaining judicial review of

a decision made by a state agency not covered by the Administrative Procedures Act.” Syl.

Pt. 2, Ginsberg, 168 W. Va. at 503, 285 S.E.2d at 368.



       In the circuit court proceedings, “‘[t]he circuit court has a large discretion in awarding

[a writ of certiorari] . . . and, unless such discretion is plainly abused, this Court cannot

interfere there with.’ Syllabus Point 1, in part, Michaelson v. Cautley, 45 W. Va. 533, 32

S.E. 170 (1898).” Syl. Pt. 1, Wysong ex rel. Ramsey v. Walker, 224 W. Va. 437, 686 S.E.2d

219 (2009). “‘On certiorari the circuit court is required to make an independent review of

both law and fact in order to render judgment as law and justice may require.’ Syllabus Point

3, Harrison v. Ginsberg, 169 W. Va. 162, 286 S.E.2d 276 (1982).” Syl. Pt. 2, Wysong, 224

W. Va. at 438, 686 S.E.2d at 220. “‘Unless otherwise provided by law, the standard of

review by a circuit court in a writ of certiorari proceeding under W. Va. Code § 53-3-3

(1923) (Repl. Vol. 2000) is de novo.’ Syllabus Point 2, State ex rel. Prosecuting Attorney

of Kanawha County v. Bayer Corp., 223 W. Va. 146, 672 S.E.2d 282 (2012).” Syl. Pt. 3,

Wysong, 224 W. Va. at 438, 686 S.E.2d at 220.


                                              -9­
       “When, after judgment on certiorari in the circuit court, a writ of error is prosecuted

in this court to that judgment, a decision of the circuit court on the evidence will not be set

aside unless it clearly appears to have been wrong.” Syl., in part, Snodgrass v. Bd. of Educ.

of Elizabeth Indep. Dist., 114 W. Va. 305, 171 S.E. 742 (1933). This Court will review the

decision of the circuit court and the record “to determine whether the circuit made a ‘clear

error in judgment or exceed[ed] the bounds of permissible choices in the circumstances.’”

Wysong, 224 W. Va. at 442, 686 S.E.2d at 224.



       A claim of a violation of the due process clause of the United States Constitution,

Amendments V & XIV, and the West Virginia Constitution, article III, section 10, presents

mixed questions of law and fact. Consequently, the circuit court’s factual findings relevant

to the constitutional claim are reviewed under a clearly erroneous standard, and questions of

law are subject to a de novo review. Cf. State v. White, 228 W. Va. 530, 546, 722 S.E.2d

566, 582 (2011) (standard of review governing alleged violations of Brady v. Maryland, 373

U.S. 83 (1963), is de novo); Gainer v. Walker, 226 W. Va. 434, 438-39, 701 S.E.2d 837, 841­

42 (2009) (standard of review governing grievance rulings includes “[p]lenary review . . . as

to the conclusions of law and application of law to the facts, which are reviewed de novo”);

State v. Matthew David S., 205 W. Va. 392, 395-96, 518 S.E.2d 396, 399-400 (1999)

(standard of review governing search and seizure issues is de novo).




                                             -10­
                                     III. DISCUSSION


                                               A.

                                      The DHHR Notice

       Almost thirty years ago the United States Supreme Court determined that

              [f]ood stamp benefits, like the welfare benefits at issue in
              Goldberg v. Kelly, 397 U.S. 254 (1970), “are a matter of
              statutory entitlement for persons qualified to receive them.” Id.,
              at 262 (footnote omitted). Such entitlements are appropriately
              treated as a form of ‘property’ protected by the Due Process
              Clause; accordingly, the procedures that are employed in
              determining whether an individual may continue to participate
              in the statutory program must comply with the commands of the
              Constitution. Id., at 262-263.

Atkins v. Parker, 472 U.S. 115, 128 (internal footnote omitted).                 Although the

Goldberg/Atkins property interest paradigm was supplanted by Congress with its passage of

the Personal Responsibility and Work Opportunity Reconciliation Act, 42 United States Code

§ 601 (1996),12 at least as to recipients of cash assistance,13 federal food stamp regulations

       12
        In 42 United States Code § 601(b), Congress pronounced: “No individual
entitlement: This part shall not be interpreted to entitle any individual or family to assistance
under any State program funded under this part.” See State ex rel. K.M. v. W. Va. Dep’t of
Health and Human Res., 212 W. Va. 783, 792, 575 S.E.2d 393, 402 (2003). In K.M., we
noted that ‘[w]hile reasonable minds may differ as to the wisdom of this approach, clearly
the Congress and the Legislature intended a clear break with the past practice of providing
cash assistance of unlimited duration to the poor.” (Internal footnote omitted.)
       13
         The petitioner claims that because SNAP, 7 United States Code §§ 2011 to 2036a,
contains no provisions similar to the “no individual entitlement” language in 42 United States
Code § 601(b), the Goldberg/Atkins analysis still applies to food stamp recipients, who have
a property interest in retaining their benefits. Inasmuch as this case may be decided on
statutory grounds, this Court need not address the constitutional issue. See Lee Trace, LLC
                                                                                   (continued...)

                                              -11­
governing SNAP benefits, 7 United States Code §§ 2011 to 2036a, still require adequate

notice of an adverse action. Such notice is defined as one that “explains in easily

understandable language: The proposed action; [and] the reason for the proposed action . .

. .” 7 C.F.R. 273.13(a)(2). Consistent therewith, in West Virginia, DHHR’s Manual

specifies that “adequate notice . . . must include the following information: . . . 2. The

reason(s) for the action provided in terms readily understandable by the applicant or recipient

and specifying all applicable manual sections.” DHHR Common Chapters Manual, Section

710.14.A.2.14       Whether the adequacy of notice is framed as a constitutional issue or a

statutory one, “[t]he underlying policy rationale is that recipients of public assistance benefits

should be afforded a degree of protection from agency error and arbitrariness in the

administration of those benefits.” Baker v. State, Dep’t of Health and Soc. Serv., 191 P.3d

1005, 1009 (Alaska 2008) (citing Banks v. Trainor, 525 F.2d 837, 842 (7th Cir. 1975)).




       13
            (...continued)
v. Raynes, No. 12-0638, __W. Va. __, __, __ S.E.2d __, __ (W. Va. filed Oct. 21, 2013),
(petitioner taxpayer alleged that notice from assessor was constitutionally inadequate, but this
Court decided the issue on statutory grounds: “[The notice] does not comport with the
requirements established in W. Va. Code § 11-3-2a, as it fails to adequately inform the
person assessed or the person controlling the property of his or her ‘right to appear’ and seek
an adjustment in the assessment.”
       14
         This and other regulations were developed in response to a Consent Decree entered
in Miller v. Ginsberg, C/A No. 74-390 CH (S.D.W.Va. 1987), which required, inter alia,
“adequate notice, simplified in form and comprehensible to the average person, which notice
shall clearly state: (1) the proposed action; [and] (2) the reasons for the action being taken[.]”

                                              -12­
       In the instant case, the notice sent to the petitioner stated that “”[w]e have determined

that you were issued more SNAP benefits than you were eligible to receive during the period

05/01/2010 to 09/30/2011 because of other eligibility factors.” The petitioner contends that

“because of other eligibility factors” fails the DHHR’s own requirement that the notice

contain “reason(s) for the action provided in terms readily understandable by the applicant

or recipient.” The DHHR, in its four-page Summary Response,15 does not address this issue,

dismissing it as “irrelevant” and stating baldly that the notice was “correct” because it

informed the petitioner that she was being charged with an overpayment, that she had a right

to a hearing, and that she could be represented at the hearing by anyone of her choice.



       We agree with the petitioner that the notice was inadequate under the relevant DHHR

Manual provision, and find that DHHR’s argument to the contrary is frivolous.16 However,

       15
         Although DHHR’s submission was designated as a “Summary Response,” it did not
comply in any respect to the requirements of Rule 10(e) of the West Virginia Rules of
Appellate Procedure. We take this opportunity to note that in cases such as these, “[w]here
the recipient has a ‘brutal need’ for the benefit at issue,” Baker, 191 P.3d at 1010 (citing
Goldberg, 397 U.S. at 261), this Court does not look kindly on a slapdash submission by
DHHR which omits any discussion of the issues raised by the petitioner and contains no
references to the record and no citations of either case law or statutory authority. We note
also that Rule 10(j) provides for the imposition of sanctions where a party’s brief does not
comport with the rules, including “the Supreme Court refusing to consider the case, denying
oral argument to the derelict party, dismissing the case from the docket, or imposing such
other sanctions as the Court may deem appropriate.”
       16
         In Baker, 191 P.3d at 1010, the Supreme Court of Alaska cited numerous authorities
standing for the proposition that an “agency must actively provide ‘complete’ notice and
should not ‘improperly place[] on the recipient the burden of acquiring notice[;] due process
directs [the agency] to supply it.’” (Emphasis added and citations omitted.)

                                             -13­
that is not the end of the inquiry.      The issue is whether the remedy for DHHR’s

noncompliance with its regulation is dismissal of the overpayment claim in all circumstances

– even where, as here, the petitioner concedes that her counsel was able to figure out the

basis for the overpayment claim and vigorously defend it on the merits. The petitioner argues

that unless the remedy is dismissal in all circumstances, a veritable “Catch-22" situation

results: individuals with counsel will cure the defective notice, and individuals without

counsel, not being schooled in the law, will never raise the issue. The result in either case

is that DHHR will never “pay the piper” for its non-compliance with its own regulations, and

thus will never have an impetus to ensure that it is providing adequate notice of adverse

action. See Vargas v. Trainor, 508 F.2d 485, 490 (7th Cir. 1974), cert. denied, 420 U.S. 1008

(1975) (noting that because there is a “human tendency” to assume that governmental action

is correct, “many of the mistakes that will inevitably be made will stand uncorrected[.]”).



        Although we are sympathetic with the petitioner’s argument, we believe that

dismissal in all circumstances is too draconian a remedy for this Court to impose on an

agency tasked with maximizing scarce resources to serve tens of thousands of individuals in

need of assistance. Accordingly, we hold that where the West Virginia Department of Health

& Human Resources provides notice of an overpayment to an individual receiving food

stamp benefits pursuant to the Supplemental Nutrition Assistance Program, 7 United States

Code §§ 2011 to 2036(a) (2012), said notice must contain, at a minimum: (1) an explanation


                                            -14­
of the proposed action and the reason therefor, in simplified form and easily understandable

language; and (2) a reference to all applicable sections of the DHHR Common Chapters

Manual. Where the notice does not comply with these requirements, the burden is on the

Department to establish, by a preponderance of the evidence, that the food stamp recipient

was not prejudiced thereby in his or her ability to contest the overpayment claim. Where the

trier of fact concludes that the recipient was in fact prejudiced, the overpayment claim shall

be dismissed. Where the trier of fact concludes that the recipient was not prejudiced, the

overpayment claim may proceed to decision on the merits.



       In the instant case, the petitioner concedes that she was not prejudiced by the

inadequate notice. Therefore, although we find that DHHR’s notice of overpayment was

inadequate and in clear violation of its own regulations, we do not grant relief to the

petitioner on this basis.



                                             B.

                            Failure to Promptly Turn Over the File

       As noted, the petitioner claims that during a two-week period after she received the

overpayment notice, she and/or her counsel made four attempts to secure a copy of her file,

the last attempt successful only because she refused to leave the DHHR’s office until the file




                                             -15­
was given to her.17 Although DHHR, in response, refers to the difficulties in balancing “the

needs of a client who appears and requests to review an entire record . . . against the needs

and interests of the multiple other clients also seeking the assistance of the local county

office that day[,]” there is no evidence in the record to indicate that such a balancing test had

anything to do with the difficulties experienced by the petitioner in receiving her file.18



       Whether due to negligence, indifference or ineptitude, there is no question that the

DHHR obstructed and impeded the petitioner’s right of access to her file. Four times she

asked for it; four times she was told “no.” As was the case with the inadequate notice,

however, the evidence indicates that the petitioner ultimately did receive her file and that her

counsel did have adequate time to prepare and mount a vigorous defense to the overpayment

claim. Thus, again, the issue before this Court is the remedy.



       Again, the petitioner contends that the remedy should be dismissal in all

circumstances, and again, this Court concludes that such remedy is too draconian, especially

in a case where there is no evidence to indicate that DHHR acted deliberately. Accordingly,

       17
         The petitioner’s brief provides cites to testimony and evidence in support of this
assertion. The DHHR does not contest the facts, but argues (inferentially) that there was no
bad faith or intent on its part to withhold the petitioner’s file.
       18
         According to the evidence presented, the petitioner and/or her counsel requested the
file several times by mail. On the day when the petitioner staged her “sit-in” at the county
office, she was not told that workers were busy with other clients; rather, she was flatly told
that she could not have the file.

                                              -16­
we hold that where the West Virginia Department of Health & Human Resources provides

notice of an overpayment to an individual receiving food stamp benefits pursuant to the

Supplemental Nutrition Assistance Program, 7 United States Code §§ 2011 to 2036(a)

(2012), and the food stamp recipient requests a hearing, the recipient has a right of access to

his or her entire case file. Where the Department unreasonably obstructs or impedes a

recipient’s right of access to the file, the burden is on the Department to establish, by a

preponderance of the evidence, that the food stamp recipient was not prejudiced thereby in

his or her ability to contest the overpayment claim. Where the trier of fact concludes that the

recipient was in fact prejudiced, the overpayment claim shall be dismissed. Where the trier

of fact concludes that the recipient was not prejudiced, the overpayment claim may proceed

to decision on the merits.



       In the instant case, the petitioner concedes that she was not prejudiced by the difficulty

she encountered in securing access to her file. Therefore, although we find that the DHHR

obstructed or impeded her right of access, in clear violation of its own regulations, we do not

grant relief to the petitioner on this basis.




                                                -17­
                                              C.

                Whether Petitioner and Mr. Hudson “Lived Together”

                         During the Relevant Time Period


       Under federal law, food stamp benefits may be provided to a “household,” generally

defined as an individual or group of individuals “who live together and customarily purchase

food and prepare meals together for home consumption.” 7 U.S.C. § 2012(n)(1) (2012); 7

C.F.R. § 273.1(a).19 This is a two-part test for unmarried individuals; even if they live

together, so long as they do not purchase food and prepare meals together they may qualify

for benefits individually. However, spouses who live together must be considered as one

household even if they do not customarily purchase and prepare meals together. 7 U.S.C. §

2012(n)(2); 7 C.F.R. 273.1(b)(1); WV Income Maintenance Manual § 9.1.A.1.b.(2).20



       Neither the statute, the regulation nor the DHHR manual defines the term “living

together.” The Secretary of the Department of Agriculture “has chosen not to define the term

but to determine which individuals are living together through ‘the application of a

       19
         The limitations contained within this definition were “designed to further limit the
number of instances in which household members may manipulate current rules and gain
status as separate food stamp households (and receive, thereby, larger benefits), although
they live together and depend on one another for support.” S.Rep. No. 97-504, 97th Cong.,
2nd Sess. 24-25 (1982), reprinted in 1982 U.S. Code Cong. & Admin. News 1641, 1661.
       20
           The United States Supreme Court has upheld the right of Congress to “‘[l]imi[t] the
availability of the “purchase and prepare food separately” rule to those most likely to actually
be separate households, although living together with others for reasons of economy or health
(i.e., [distant relatives and] unrelated persons).’ S. Rep. No. 97-504, p. 25 (1982).” Lyng v.
Castillo, 477 U.S. 635, 641-42 (1986).

                                             -18­
reasonable judgment based on the circumstances of a particular living arrangement.’ 47 Fed.

Reg. 52,328, 52,329 (1982).” Robinson v. Block, 869 F.2d 202, 213 (3rd Cir. 1989). This

reasonable judgment test allows for consideration of a wide range of factors, but specifically

prohibits application of an irrebuttable “same address” presumption. Robinson, 869 F.2d at

213-14 (evidence that siblings lived at same address may be considered but is not

conclusive); 21 Zayas v. Dep’t. of Health & Rehabilitative Serv., 598 So.2d 257, 259 (Fla.

Dist. Ct. App. 1992) (“Congress did not intend that households be subject to a ‘same address’

test in determining whether individuals ‘live together[,]’” (citing Robinson, 869 F.2d at

214)).



         Thus, we examine the record, pursuant to the appropriate standard of review, to

determine de novo whether the circuit court applied the correct test; and thereafter to

determine whether the court’s findings of fact were clearly erroneous.




         21
         Pursuant to federal food stamp laws in effect at the time Robinson was decided,
siblings living together, regardless of age, were treated as comprising one household even
if they did not customarily purchase and prepare meals together. Under the Supplemental
Nutrition Assistance Program, there are now three types of individuals who are treated as
comprising one household even if they do not customarily purchase and prepare meals
together: spouses who live together; parents and minor children who live together; and
children under the age of eighteen living with a non-parent who functions as a parent. 7
U.S.C. § 2012(n)(2).

                                            -19­
                                               1.


                          The Test Applied by the Circuit Court

       As set forth herein, see text supra, the issue before the circuit court on certiorari, and

now before this Court on appeal, is whether the petitioner and Mr. Hudson lived together,

which in turn is dispositive of whether they constituted a “household” within the applicable

statutes and regulations. The circuit court’s order contains no discussion of, no reference

to, and no finding on, this issue. Rather, the court concluded that the “Petitioner and her

spouse shared utilities and property where Petitioner receives her public assistance benefits;

therefore, it is logical to conclude that Petitioner and her spouse lived in the same household

during the repayment period of May 2010 to September 2011.”



       In Baca v. Arizona Department of Economic Security, 951 P.2d 1235, 1238 (Ariz. Ct.

App. 1998), a case quite similar to the case at bar, the Arizona Department of Economic

Security, which administered that state’s food stamp program, conceded that whether spouses

lived together, not whether they were members of a household, is the relevant test. “DES

admits in its brief that the Board’s statement that ‘living together’ is not necessary for

determination of inclusion in a household for food stamp eligibility purposes seems contrary

to federal law. We agree.” Id.; see also Robinson, 869 F.2d at 209 (Secretary of Agriculture

stipulated that defendant agencies “are required . . . to refrain from alleging overissuances

of food stamps to siblings who can show that they do not or did not ‘live together’”).


                                              -20­
       Here, because the circuit court concluded that the petitioner and her husband

constituted a “household” in the absence of a finding that they lived together, the court

utilized the wrong test in denying the petitioner’s petition for a writ of certiorari. A

“household,” under the relevant portion of the express language of 7 United States Code §

2012(n)(2), consists of “[s]pouses who live together.”



       Ordinarily, having concluded that the circuit court utilized the wrong test in evaluating

the evidence of record, this Court would remand for the court to re-evaluate the evidence

under the correct test. However, because the evidence in this case admits of only one

conclusion, in the interest of judicial economy we proceed to decision on the merits.22



                                              2.

                          The Circuit Court’s Findings of Fact

       In order to evaluate the circuit court’s findings of fact, we examine the evidence

presented to respondent Baisden. As set forth in this opinion, see text supra, the inquiry is


       22
         Compare Gentry v. Mangum, 195 W. Va. 512, 466 S.E.2d 171 (1995) (holding that
trial court erred in excluding expert testimony under Rules 702 and 703 of the West Virginia
Rules of Evidence, and remanding for reconsideration of the testimony under Rule 403); with
Leary v. McDowell Co. Nat. Bank, 210 W. Va. 44, 552 S.E.2d 420 (2001) (holding that trial
court erred in granting summary judgment for employer in employees’ claim for wages and
fringe benefits, and remanding with directions that court enter summary judgment for
Commissioner of the Division of Labor); and Spitznogle v. Durbin, 230 W. Va. 398, 738
S.E.2d 562 (2013) (holding that trial court erred in granting summary judgment for sellers,
and remanding with directions that court enter summary judgment for purchasers).

                                             -21­
whether the petitioner and Mr. Hudson lived together during the seventeen month period

encompassed by the overpayment claim. Courts that have considered this issue have

uniformly held, in accordance with Robinson, 869 F.2d at 213-14, that the fact that

individuals have the same address is not by itself sufficient to establish that they live

together. Rather, the agency must consider all of the relevant circumstances of a particular

living arrangement, such as “separate entrances and locks, separate finances, utility bills and

telephone, and essentially separate living quarters.” Id. at 209.23 We agree, and accordingly,

we hold that determination of whether individuals “live together” within the meaning of the

Supplemental Nutritional Assistance Program, 7 United States Code § 2012(n)(2) (2012),

requires the application of reasonable judgment based on all relevant circumstances of a

particular living arrangement. Evidence that individuals use the same mailing address may

be considered, but is not, in and of itself, conclusive of the issue.24



       With this standard in mind, we turn to the relevant circumstances presented in the

instant case. The petitioner and her witnesses testified, without contradiction, that after the



       23
         Obviously, many of the particular circumstances set forth in Robinson would apply
only where individuals live in the same home but still claim that they do not “live together”
within the meaning of 7 United States Code § 2012(n)(2).
       24
        We emphasize that this case involves two individuals who, although married, did not
live under the same roof. Therefore, our holding today establishes the application of the
“same address” test only in this narrow context; we need not determine the outer limits of the
“same address” test in a situation where individuals live in the same home, although in
separate quarters within that home. See note 23 supra.

                                              -22­
petitioner threw Mr. Hudson out of her home, he never set foot in the home again; that Mr.

Hudson kept no clothing, toiletries or other personal items in the home; that for the first four

months, Mr. Hudson lived in a camper, belonging to his brother, that was located on the

petitioner’s property, and ran an extension cord from the petitioner’s home to the camper;

that the petitioner and Mr. Hudson shared no other utilities; that for the next three months,

Mr. Hudson lived in his mother’s home; and that after the death of Mr. Hudson’s mother, his

brother removed the camper and for the next ten months Mr. Hudson lived variously with his

son, his daughter, his stepdaughter or his sister.



       The relevant evidence25 presented by DHHR was that Mr. Hudson shared electricity

with the petitioner for the first four months of the seventeen month overpayment period; that

Mr. Hudson listed the petitioner’s address as his own when applying for medical benefits and

renewing his driver’s license; that Mr. Hudson listed the petitioner’s telephone number as his

own in those same documents; and that the couple did not establish separate bank accounts

after their separation. With regard to the first item of evidence, the petitioner and Mr.

Hudson testified without contradiction that he provided at least some reimbursement to the



       25
         DHHR’s evidence that the petitioner drove Mr. Hudson to medical appointments is
irrelevant to a determination of whether the two lived together, as is Mr. Hudson’s statement
that “he took care of her and she took care of him.” At best, this evidence demonstrates that
the couple maintained a loving bond and continued to assist each other whenever possible,
despite their separation; as the petitioner testified, “[a]ny time he straightens himself up,
that’s his home.”

                                             -23­
petitioner for her electric bill. With regard to the second, Mr. Hudson testified without

contradiction that government agencies will not accept a post office box as an “address,” and

he therefore listed the petitioner’s address for lack of anything else to list. With regard to the

third, the petitioner testified without contradiction that when any calls came in for Mr.

Hudson, she took a message and delivered it either to Mr. Hudson or his daughter. With

regard to the fourth, the petitioner testified without contradiction that because both she and

Mr. Hudson had “bad credit,” she believed that neither would be able to open a new banking

account.26



        This Court has carefully examined the record, and concludes that no reasonable

factfinder could find, on the basis of the evidence presented, that the petitioner and Mr.

Hudson lived together from May, 2010, through September, 2011. Both the hearing

examiner and the circuit court put great reliance on the fact that Mr. Hudson lived in a

camper located on the petitioner’s property, and utilized the petitioner’s electricity.27

However, neither the hearing examiner nor the court addressed the fact that the camper was

owned by Mr. Hudson’s brother, not by the petitioner; that Mr. Hudson reimbursed the

       26
         Although counsel for DHHR implied at oral argument that the testimony of the
petitioner and her witnesses was not credible, neither the hearing officer nor the circuit court
made any such credibility findings.

       27
         Both respondent Baisden and the circuit court used the collective term “utilities” in
their respective opinions, whereas the undisputed testimony was that the petitioner and Mr.
Hudson shared only electricity, and only for a short time.

                                              -24­
petitioner for the electricity, at least in part; and that Mr. Hudson lived in the camper for only

four months, whereas the overpayment period alleged by DHHR spans seventeen months.

Further, neither the examiner nor the court addressed the fact – which was undisputed – that

from the day in April, 2009 or 2010, that the petitioner threw Mr. Hudson out of her home,

he never set foot in it again.



       The hearing examiner’s conclusion that the petitioner and Mr. Hudson shared “liquid

assets” is not supported by any evidence of record, even assuming, arguendo, that it had any

bearing on whether the Hudsons were living together. Although the petitioner and Mr.

Hudson did not establish separate bank accounts, for reasons explained by the petitioner,

there was no evidence presented that they shared their respective assistance checks or other

income with each other.



       Finally, the fact that Mr. Hudson continued to list the petitioner’s address and

telephone number as his own, on his DMV application and his application for medical

benefits, establishes nothing under the facts and circumstances of this case. The undisputed

evidence was that Mr. Hudson had no access to the petitioner’s home, even during the four

months he lived in the camper, and no access to the telephone. Only by applying an

irrebutable “same address” presumption – which both the hearing examiner and the circuit




                                              -25­
court appear to have done – could this evidence be deemed sufficient to establish that the

petitioner and Mr. Hudson lived together. Robinson, 869 F.2d at 213-14.



       In Baca, supra, the petitioner, Ms. Baca, appealed from a decision of the state’s

Department of Economic Security Appeals Board finding that her husband was a member

of her household whose resources would be included for determining her food stamp

eligibility. The Board’s decision was based upon findings that Mr. Baca was a joint owner

of the petitioner’s house; that he came to the house every day to see the couple’s children and

stayed until 2:00 a.m.; that he spent most Friday nights and some Saturday nights in the

home; that he kept clothes in the home; that he picked up his mail at the home; and that Ms.

Baca had informed Mr. Baca’s employer that the couple lived together so that the employer

would cease withholding child support payments from his check. 951 P.2d at 1239.

Additionally, Mr. Baca used his wife’s address as his own in employment records, DMV

records, mortgage records, and at least two vehicle liens. In contradiction to this evidence,

Ms. Baca submitted “short, handwritten statements . . . in which various parties stated

without elaboration that she and [her husband] were not living together[,]” which the court

concluded “were not entitled to much probative weight.” Id. at 1239 n.4.



       Not surprisingly, under the “reasonable judgment based on all relevant circumstances”

test, the Baca court concluded on these facts that Mr. and Mrs. Baca lived together. Here,


                                             -26­
in contrast, the DHHR’s case hangs – quite literally – on an extension cord run from the

petitioner’s house to Mr. Hudson’s camper during a four month period of time. None of the

other evidence submitted by DHHR in any way establishes that the petitioner and Mr.

Hudson lived together from May, 2010, through September, 2011; at best, it established that

Mr. Hudson used the petitioner’s address, for lack of any alternative, when he was required

to list an address on official documents.28



       Pursuant to the DHHR’s regulations, “[t]he burden of proof is first on the Department

to prove, by a preponderance of evidence, that its adverse action was correct, then shifts to

the applicant or recipient to prove, again by a preponderance of evidence, that the

Department’s action was incorrect.” DHHR Common Chapters Manual § 710.20.F. This

Court finds that DHHR failed to prove that the petitioner and Mr. Hudson lived together

during the seventeen month time period of the overpayment claim, and that the claim should

have been dismissed at the conclusion of DHHR’s evidence. Even assuming, arguendo, that

the DHHR’s evidence was sufficient to shift the burden of proof to the petitioner, the

petitioner’s evidence was overwhelming and established that DHHR’s action was incorrect.

Accordingly, we find that in denying the petitioner’s petition for a writ of certiorari, the




       28
         We note that DHHR never sought to amend its overpayment claim to encompass
only that period of time during which Mr. Hudson was living in the camper, choosing instead
to try the case and defend it on appeal as an “all or nothing” case.

                                              -27­
circuit court “made a ‘clear error in judgment [and] exceed[ed] the bounds of permissible

choices in the circumstances.” Wysong, 224 W. Va. at 442, 686 S.E.2d at 224.



                                               IV.


                                        CONCLUSION


       The judgment of the Circuit Court of Kanawha County is reversed, and this case is

remanded with instructions that the court grant the petitioner’s petition for a writ of certiorari

and dismiss the DHHR’s overpayment claim.



                                                                       Reversed and Remanded
                                                                       With Instructions.




                                              -28­
