Opinion
No. 98-0603
Opinion filed January 13, 1999. JANUARY TERM, 1999
An appeal from the Florida Department of Children and Family Services; L.T. NO. 97F-5674.
Stewart M. Mirmelli, for appellant.
Meryl S. Gold-Levy, for appellee.
Before COPE, GERSTEN, and GREEN, JJ.
Elisa S. Cohen appeals an order denying food stamp benefits. We reverse.
Cohen, a recipient of food stamps, was erroneously denied benefits for the month of November, 1997. Upon being advised of the error, the Department of Children and Family Services sent Cohen the following notice of case action:
We have reviewed your eligibility and have determined that from 11/01/97 through 11/30/97, your assistance group received $342.00 less in FOOD STAMPS benefits than you were eligible to receive. You will receive an additional FOOD STAMPS benefit in the amount of $342.00 which covers 11/01/97 through 11/30/97. Eligibility for lost benefits exists even if you are not currently eligible to receive food stamp benefits.
On December 2, Cohen went to the food stamp office but the agency refused to issue the stamps. The agency advised her that the stamps had to be picked up by November 30. Cohen sought administrative relief, but the hearing officer ruled in favor of the agency. Cohen has appealed.
It is our view that the agency's notice of case action, quoted above, fails to give fair notice that the food stamps had to be picked up by November 30, 1997. The notice does not contain a deadline date. Indeed, the final sentence of the notice states, "Eligibility for lost benefits exists even if you are not currently eligible to receive food stamp benefits." Since Cohen had already been determined to be eligible for food stamps in the month of November, this sentence intimated that the food stamps could be picked up in a subsequent month, even if Cohen were no longer eligible. Because of the misleading nature of the notice reinstating benefits, we conclude that Cohen is entitled to be issued the food stamps. Accordingly we reverse the order of the hearing officer.
Cohen seeks attorney's fees under two federal statutes, 5 U.S.C. § 504 and 28 U.S.C. § 2412. Neither statute applies to a state agency. See 5 U.S.C. § 504(b)(2), 551(1); 28 U.S.C. § 2412(b). The request for attorney's fees is therefore denied.
Reversed and remanded with directions to award the food stamp benefits.