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pdf ABAWDS Law Suit – District o Columbia v. USDA – Memorandum Opinion- March, 2020

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ABAWDS Law Suit – District o Columbia v. USDA – Memorandum Opinion.pdf

” 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DISTRICT OF COLUMBIA, et al., Plaintiffs, v. U.S. DEPARTMENT OF AGRICULTURE, et al., Defendants. Civil Action No. 20-119 (BAH) Chief Judge Beryl A. Howell BREAD FOR THE CITY, et al., Plaintiffs, v. U.S. DEPARTMENT OF AGRICULTURE, et al., Defendants. MEMORANDUM OPINION In this country of plenty, the federal and state governments work together to ensure that low-income Americans and their families do not go hungry. The largest federal food assistance program that serves as the cornerstone of this joint federal-state effort to reduce hunger \u2014 and hunger’s adverse effects on health, educational achievement, and housing security \u2014 is the Supplemental Nutrition Assistance Program (SNAP), formerly known as the food stamp program. A new federal rule poised to go into effect in a few weeks, in April 2020, would dramatically alter the long-standing operations of the SNAP program, placing more stringent requirements on states’ award of SNAP benefits with concomitant, virtually immediate effects on the lives, by the federal government’s estimate, of over one million individuals currently Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 1 of 84 2 receiving SNAP benefits. Of those million, nearly 700,000 would lose their benefits. Especially now, as a global pandemic poses widespread health risks, guaranteeing that government officials at both the federal and state levels have flexibility to address the nutritional needs of residents and ensure their well-being through programs like SNAP, is essential. Nineteen states, the District of Columbia, the City of New York, and three private plaintiffs have moved to enjoin preliminarily and to stay this new federal rule, issued by the United States Department of Agriculture (USDA), that would limit state-implemented waivers of the work requirements on which receipt of food assistance from SNAP may be conditioned. See Final Rule, Supplemental Nutrition Assistance Program: Requirements for Able-Bodied Adults Without Dependents, 84 Fed. Reg. 66782 (Dec. 5, 2019); see also State Pls.’ Mot. for Prelim. Inj. or 5 U.S.C. 705 Stay Pending Judicial Review ( State Pls.’ Mot. ), ECF No. 3; Pls.’ Mot. for Prelim. Inj. ( Private Pls.’ Mot. ), Bread For the City, et al. v. U.S. Dep’t of Agric., et al., 20- cv-127, ECF No. 4. The low-income Americans targeted by USDA’s Final Rule depend on monthly SNAP benefits to avoid hunger. These SNAP participants may wield little political or economic power, but, nonetheless, USDA’s proposed changes to take away nutrition benefits from almost 700,000 people prompted more than 100,000 comments, the majority of which the agency concedes were opposed to the proposed changes. 84 Fed. Reg. at 66783 84. Notwithstanding these critical comments, USDA proceeded in the challenged Final Rule to adopt changes that, in some respects, were more draconian than those initially proposed. Although the hundreds of thousands of low-income individuals who stand to lose their benefits had little direct voice in that rulemaking process, the process exists to protect them and ensure that the agency cannot terminate their benefits arbitrarily. Under the Administrative Procedure Act (APA), agency Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 2 of 84 3 rules, like USDA’s, are unlawful unless the agency has considered the relevant evidence, has weighed the consequences of its actions, and has rationally justified its choices. USDA says it did all that here, but USDA is not the arbiter of the Final Rule’s legality. The courts are, and this Court has determined that aspects of the Final Rule are likely unlawful because they are arbitrary and capricious. USDA will be enjoined from implementing those aspects of the Final Rule nationwide pending final judicial review. The Final Rule relates to provisions of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) that conditioned the eligibility for SNAP benefits of able-bodied adults without disabilities, or ABAWDs, on meeting work-related requirements. See Pub. L. No. 104-193 824, 110 Stat. 2105, 2323 (1996) (codified at 7 U.S.C. 2015). Recognizing that the imposition of inflexible work requirements would undermine the SNAP program’s effectiveness in alleviating hunger, Congress created two relevant exceptions. First, PRWORA provided that, [o]n the request of a State, USDA may waive the work requirements in area[s] that do not have a sufficient number of jobs for ABAWDs. 7 U.S.C. 2015(o)(4)(A). Portions of the challenged Final Rule set to become effective on April 1, 2020, redefine waiver area[s] and limit the ways that states can show lack of sufficient jobs. See 84 Fed. Reg. at 66802; see also id. (printing parts of the regulation to be codified, including the challenged portions: (f)(2) and (f)(4)). Second, the Balanced Budget Act of 1997 (BBA) allowed states to exempt from the work requirements up to 15% of all covered individuals in the State. 7 U.S.C. 2015(o)(6)(C) (D); see also Balanced Budget Act of 1997, Pub. L. No. 105-33 1001, 111 Stat. 251, 252 (1997). Portions of the Final Rule set to become effective on October 1, 2020, limit states’ ability to carry unused discretionary exemptions to later years. See 84 Fed. Reg. at 66802. For the reasons stated below, plaintiffs’ motions are DENIED as to the Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 3 of 84 4 discretionary exemption portions of the Final Rule. Plaintiffs’ motions are GRANTED as to the waiver portions of the Final Rule. I. BACKGROUND Review of the procedural background follows discussion of the statutory framework, the regulatory framework, and the challenged Rule. A. Statutory Framework Congress created SNAP in 1964 to alleviate . . . hunger and malnutrition by providing supplemental nutrition assistance to low-income households. 7 U.S.C. 2011; see also Food Stamp Act of 1964, Pub. L. No. 88-525, 78 Stat. 703 (1964). SNAP offers non-cash benefits that can be used to buy eligible food at approved retail stores. See 7 U.S.C. 2011; id. at 2013(a). The program served an average of 42.1 million recipients per month in fiscal year 2017. See 83 Fed. Reg. 8013, 8013 (Feb. 23, 2018). Average monthly benefits are about $123, while average monthly benefits for ABAWDs are around $160. See USDA, Characteristics of Able-Bodied Adults Without Dependents (2018), https:\/\/www.fns.usda.gov\/snap\/characteristics- able-bodied-adults-without-dependents; see also Edward Bolen Decl. ( Bolen Decl. ), Att. 2 at 228, ECF No. 3-2 (quoting the figure for ABAWDs). USDA is authorized to formulate and administer SNAP, 7 U.S.C. 2013(a), and has delegated those responsibilities to the Food and Nutrition Service (FNS), a part of USDA, 7 C.F.R. 271.3(a). Congress also explicitly granted USDA authority to issue regulations necessary or appropriate to implement SNAP and prescribed that USDA shall promulgate all such regulations in accordance with the APA’s notice and comment rulemaking procedures. 7 U.S.C. 2013(c). States, including the District, also play a significant role in administering SNAP. See 7 U.S.C. 2012(r) (including the District in the relevant definition of State ). By statute, state Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 4 of 84 5 agencies have responsibility for certifying applicant households as eligible for SNAP and for issuing benefits. Id. 2020(a)(1); see also Garnett v. Zeilinger, 313 F. Supp. 3d 147, 151 52 (D.D.C. 2018) (describing state responsibilities). The federal government funds at least half of each state’s costs to operat[e] SNAP, 7 U.S.C. 2025(a), and federal funds cover the full cost of SNAP benefits paid, see id. 2019. 1. Work Requirement Waivers PRWORA, which amended the Food Stamp Act of 1977, conditioned ABAWD’s eligibility for SNAP benefits on meeting work-related requirements. ABAWDS are specifically defined as individuals between 18 and 49 years of age who are not medically certified as physically or mentally unfit for employment, are not a parent or other member of a household with responsibility for a dependent child, are not pregnant, and are not otherwise exempt under subsection (d)(2). 7 U.S.C. 2015(o)(3); see also id. 2015(d)(2) (providing a variety of exemptions, including for students and for those participating in drug treatment programs). Under 7 U.S.C. 2015(o), ABAWDs can only receive SNAP benefits for three months in a 36- month period unless they are working or participating in job training for 20 hours or more per week, averaged monthly. Id. 2015(o)(2).1 Congress recognized that blunt application of those work requirements in areas where few jobs are available would advance neither PRWORA’s goal of engaging ABAWDs in the workforce nor the SNAP program’s goal of ensuring food security. See, e.g., 142 Cong. Rec. H7905 (1996) (statement of Rep. Kasich) (stating that the program aims to encourage employment in areas where there are jobs available ). Congress therefore created a process for 1 Job-substitute and training programs include a work program . . . as determined by the State agency and a program under section 2029 of this title or a comparable program established by a State or political subdivision of a State. 7 U.S.C. 2015(o)(2). Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 5 of 84 6 waiving the work requirements in certain areas. On the request of a State agency, USDA may waive the work requirements to any group of individuals in the State if USDA makes a determination that the area in which the individuals reside either (i) has an unemployment rate of over 10 percent; or (ii) does not have a sufficient number of jobs to provide employment for the individuals. Id. 2015(o)(4)(A). [T]he individuals referenced are ABAWDs. See State Pls.’ Mem. Supp. Mot. for Prelim. Inj. ( State Pls.’ Mem. ) at 21, ECF No. 3; Private Pls.’ Mem. Supp. Mot. for Prelim. Inj. ( Private Pls.’ Mem. ) at 12, Bread for the City, et al., 20-cv-127, ECF No. 4; Defs.’ Consolidated Opp’n to Pls.’ Mots. for Prelim. Inj. ( USDA’s Opp’n ) at 24, ECF No. 26 (describing the statute as providing whether an area has ‘a sufficient number of jobs to provide employment for’ ABAWDs (quoting 7 U.S.C. 2015(o)(4)(A)(ii)). As discussed in more detail below, through guidance and regulation, USDA has implemented the statutory phrases area in which the individuals reside and sufficient number of jobs to provide employment for the individuals. The challenged Final Rule radically rewrites the policies that have been in effect for 25 years. 2. Discretionary Exemptions As stated, in the BBA, Congress allowed states to exempt from a month’s work requirements up to 15% of all covered individuals in the State. 7 U.S.C. 2015(o)(6)(C) (D). Covered individuals are ABAWDs subject to the work requirements. Id. 2015(o)(6)(A)(ii). Thus, ABAWDs residing in waived areas do not count as covered individuals, and states with statewide waivers in a given year do not earn any exemptions in that year. For ABAWDs, being granted an exemption in a month means that the month’s SNAP benefits will not count towards the three-month limit. Congress reduced these discretionary state exemptions to 12% of covered individuals starting in fiscal year 2020. Id. 2015(o)(6)(E). Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 6 of 84 7 By statute, USDA calculates each state’s available exemptions annually based on an estimate[] of the total number of covered individuals in a given state. Id. 2015(o)(6)(C) (E). Under 7 U.S.C. 2015(o)(6)(G), USDA shall increase or decrease the number of each state’s discretionary exemptions to the extent that the average monthly number of exemptions in effect in the State for the preceding fiscal year was lesser or greater than the average monthly number of exemptions estimated for that state for the preceding fiscal year. In other words, USDA is required to increase a state’s allotted discretionary exemptions for a given fiscal year to the extent that the state used fewer exemptions in the prior fiscal year than it had earned. USDA is required to decrease a state’s allotted discretionary exemptions for a given fiscal year to the extent that the state used more exemptions in the prior fiscal year than it had earned. The challenged Rule changes how USDA implements the carrying over of exemptions. B. Regulatory Framework The full description of that challenged Rule is preceded by a description of the 2001 regulation, which is currently in effect. 1. The 2001 Regulation Prior to 2001, in 1996, USDA had published guidance similar in substance to the 2001 regulation. Compare Food Stamp Program: Personal Responsibility Provisions of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ( 2001 Regulation ), 66 Fed. Reg. 4438 (codified at 7 C.F.R. 273.24), with State Pls.’ Mot., Kathleen Konopka Decl. ( Konopka Decl. ), Ex. C, Att.2, Guidance for States Seeking Waivers for Food Stamp Limits (Dec. 3, 1996), ECF No. 3-12. The 2001 regulation generally permits a state to submit whatever data it deems appropriate to support its waiver requests, but requires data reliant on standard Bureau of Labor Statistics (BLS) data or methods for waiver requests based on unemployment rates or Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 7 of 84 8 labor force data. 7 C.F.R. 273.24(f)(2). The regulation also provides [a] non-exhaustive list of the kinds of data a State agency may submit to support a claim of lack of sufficient jobs. Id. The six criteria on this non-exhaustive list include data showing that an area: (1) is designated as a Labor Surplus Area (LSA) by the Department of Labor (DOL); (2) qualifies, as determined by DOL, for extended unemployment benefits; (3) is described in an academic study or other publications as an area where there are lack of jobs; (4) has a 24-month average unemployment rate 20 percent above the national average for the same 24-month period. Id. 273.24(f)(2)(ii). The regulation further permits states to define areas to be covered by waivers. Id. 273.24(f)(6). The 2001 regulation implements the statutory provisions about discretionary exemptions by explaining simply that, if a State agency does not use all of its exemptions by the end of the fiscal year, FNS will increase the estimated number of exemptions allocated to the State agency for the subsequent fiscal year by the remaining balance. Id. 273.24(h)(2)(i). Conversely, [i]f the State agency exceeds its exemptions by the end of the fiscal year, FNS will reduce the estimated number of exemptions allocated to the State agency for the subsequent fiscal year by the corresponding number. Id. 273.24(h)(2)(ii). 2. The Challenged Rule USDA issued an Advanced Notice of Proposed Rulemaking (ANPRM) on February 23, 2018 to solicit comments from the public about potential changes to the 2001 regulation’s treatment of state waivers. 83 Fed. Reg. 8013, 8013 (Feb. 23, 2018). The ANPRM generated nearly 39,000 comments . . . . Proposed Rule, 84 Fed. Reg. 980, 982 (Feb. 1, 2019). On February 1, 2019, USDA published a Proposed Rule that, inter alia, altered the 2001 regulation’s criteria governing approval of state waivers, redefined area for purposes of state waiver applications, and revised how USDA calculated carried over discretionary exemptions. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 8 of 84 9 Id. at 983. The Proposed Rule cited as one rationale for modifying waiver standards, id. at 980 (capitalization altered), the President’s April 2018 Executive Order on Reducing Poverty in America by Promoting Opportunity and Economic Mobility, which directed Federal agencies to review regulations and guidance documents to determine whether such documents are consistent with the principles of increasing self-sufficiency, well-being, and economic mobility, id. at 980 981. USDA voiced confide[nce] that the proposed changes would encourage more ABAWDs to engage in work or work activities if they wish to continue to receive SNAP benefits. Id. at 981. USDA received more than 100,000 comments on the Proposed Rule. 84 Fed. Reg. at 66783. Like the Proposed Rule, the Final Rule tightened the criteria for demonstrating lack of sufficient jobs, reworked the definition of waiver area, and changed how discretionary exemptions would be carried over. See id. at 66811 12. 2 The waiver-related changes are effective April 1, 2020, while the discretionary exemption change is effective October 1, 2020. Id. at 66782. What follows is an overview of the Final Rule and of USDA’s reasoning in adopting it. a. Waivers for Lack of Sufficient Jobs The Final Rule provides that USDA will approve states’ waivers for areas satisfying one of two core standards: (1) a recent 12-month average unemployment rate over 10 percent; or (2) a recent 24-month average unemployment rate 20 percent or more above the national rate and above 6%. Id. at 66811. The first standard corresponds to the statutory provision allowing a waiver if an area has an unemployment rate of over 10 percent. 7 U.S.C. 2015(o)(4)(A)(i). 2 The differences between the Proposed Rule and the Final Rule are not comprehensively detailed because this decision does not resolve the plaintiffs’ procedural challenges that depend on those differences. See infra, note 12 (describing those procedural challenges). Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 9 of 84 10 The second standard is intended to correspond to the statutory provision allowing a waiver if an area does not have a sufficient number of jobs to provide employment for the individuals. Id. 2015(o)(4)(A)(ii); see 84 Fed. Reg. at 66791 (indicating this). In short, under the Final Rule, to qualify an area for a waiver based on insufficient jobs, a state will generally need to show that the area’s 24-month average unemployment rate is both 20% above the national average and above 6%. The Final Rule thus adds, for the first time in this regulatory scheme, an unemployment rate floor to the waiver criteria. Finally, as discussed further later, USDA will also consider waiver requests based on other data and evidence in an exceptional circumstance. 84 Fed. Reg. at 66811. As already noted, the 2001 regulation’s non-exhaustive list of criteria for establishing lack of sufficient jobs comprises six examples of data sources and types that may be used. 7 C.F.R. 273.24(f)(2)(ii). The Final Rule eliminates five of those criteria and adds the 6 percent unemployment rate floor to the 2001 regulation’s criterion requiring a 24-month average unemployment rate. 84 Fed. Reg. at 66785. Not including a floor, the Final Rule stated, has had the effect of allowing areas with low rates of unemployment to qualify for waivers. Id. at 66784. The Final Rule addressed USDA’s decision to eliminate the following five criteria listed in the 2001 regulation: qualification for federal extended unemployment benefits; designation as an LSA by DOL; a declining employment-to-population ratio; jobs in declining industries or occupations; and description in an academic study or publication as an area lacking jobs. 7 C.F.R. 273.24(f)(2)(ii). As to qualification for federal extended unemployment benefits, which DOL evaluates statewide, USDA expressed concern[] that retaining this criterion would allow States to receive statewide waivers even when there is not a lack of sufficient jobs within certain Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 10 of 84 11 areas of the State. Id. at 66789 90. The Final Rule thus tied elimination of this criterion to the redefinition of waiver area, explaining that USDA is choosing to provide a strict definition of a waiver area that will also restrict statewide waivers. Id. at 66790. As to LSA designation, USDA similarly reasoned that including LSA designation as a waiver criterion would be inconsistent with the final rule’s definition of an area. Id. at 66800. The other three criteria listed in the 2001 regulation \u2014 a declining employment-to- population ratio, jobs in declining industries or occupations, and description in an academic study or publication as an area lacking jobs \u2014 were rejected as a group for inclusion in the Final Rule. Id. at 66790.3 Many commenters, USDA observed, opposed excluding these criteria. Id. Most importantly, some commenters made the broad[] argu[ment] that elimination of these criteria results in an overreliance on unemployment rates in measuring lack of sufficient jobs. Id. at 66791. USDA acknowledged that non-unemployment rate based measures can enhance the understanding of the job market, but, citing its operational experience, said that the Department has recognized that these measures are less reliable and consistent than standard unemployment data in demonstrating a lack of sufficient jobs. Id. USDA also referred readers to the discussion of unemployment rates in the section of the Rule justifying the 6% unemployment rate floor. Id. That discussion’s summary of comments concerned with overreliance on unemployment rates was extensive, with the vast majority of those who commented on the unemployment rate floor opposed setting any unemployment rate floor. See id. at 66786 88. These commenters gave statutory and policy reasons for their position. See id. at 66786 87. First, [c]ommenters 3 The Final Rule continued to include these criteria as appropriate supporting evidence for waiver applications for areas, such as Indian reservations and U.S. Territories, for which BLS produces limited data. See 84 Fed. Reg. at 66791; see also id. at 66811. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 11 of 84 12 argued that the statutory language, id. at 66786 \u2014 which allows a waiver if an area does not have a sufficient number of jobs to provide employment for the individuals, 7 U.S.C. 2015(o)(4)(A)(ii) (emphasis added) \u2014 requires the Department to base the waiver standards on whether there are lack of sufficient jobs for the specific ABAWD population, not the broader population, 84 Fed. Reg. at 66786. USDA responded to this line of argument with its view that limiting the number of ways that a State may demonstrate a lack of jobs in order to prevent the misapplication of waivers in areas in which the lack of jobs is questionable is well within the authority granted at 7 U.S.C. 2015(o)(4)(A), which USDA interpreted to provide[] the Secretary with broad discretion on how to define what does and does not constitute a lack of sufficient jobs, 84 Fed. Reg. at 66788. Second, commenters offered analysis and research, id. at 66787, supporting their understanding that the standard unemployment rate does not accurately reflect labor market prospects for ABAWDs[] and . . . does not fully account for the ability of ABAWDs to find and keep jobs due to lack of skills, training, or other barriers, id. at 66786. This research included studies indicating that ABAWDs tended to have lower levels of education, higher levels of disability, higher levels of homelessness, were more likely to have been incarcerated, were more likely to experience racial discrimination, and were more likely to be underemployed than the general population and studies suggesting that these characteristics correlated with unemployment rates higher than the unemployment rate of the general population. Id. at 66787. Commenters also asked the Department to consider access to transportation, housing stability, and forced moves among the ABAWD population that lead to particular problems maintaining stable employment. Id. Finally, commenters observed that USDA has previously acknowledged, in the 1996 guidance and the 2001 rulemaking, that time limit waivers were Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 12 of 84 13 intended by Congress to recognize the challenges that the ABAWD population faces when finding permanent employment. Id. at 66787. In response to these comments, USDA recognize[d] that ABAWDs may face barriers to employment and have more limited employment prospects than the general public. Id. [N]otwithstanding this recognition, the Department [wa]s resolute that the Rule’s changes, and specifically the 6% unemployment rate floor, were necessary to ensure that the standard is designed to accurately reflect a lack of sufficient jobs in a given area. Id. The Department’s position, USDA stated, is based on its operational experience, during which it has recognized that, without such changes areas that do not clearly lack sufficient jobs will continue to qualify for waivers. Id. b. Redefinition of area The 2001 regulation, which permits states to define areas to be covered by waivers, 7 C.F.R. 273.24(f)(6), allows waivers for single counties or towns or for groups of jurisdictions, see 84 Fed. Reg. at 66794. The Final Rule would eliminate states’ longstanding discretion to tailor waiver requests. Specifically, the Final Rule prohibit[s] states from combining unemployment data from individual substate areas to calculate an unemployment rate for the combined area . . ., unless the combined area is designated as a Labor Market Area (LMA) by DOL. Id. at 66793.4 According to the Final Rule, DOL describes an LMA as an economically integrated area within which individuals can reside and find employment within a reasonable distance or can readily change jobs without changing their place of residence. Id. In short, the Final Rule redefines area in which the individuals reside, 7 U.S.C. 2015(o)(4)(A), as the LMA in which the individuals reside, see 84 Fed. Reg. at 66811. [T]his 4 The Rule also consider[s] any reservation area and U.S. Territory to be an area for the purposes of waivers. See 84 Fed. Reg. at 66811. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 13 of 84 14 means that the final rule will only allow for waivers covering LMAs. Id. at 66796. Many commenters opposed the proposed restriction on grouping only to LMAs. Id. at 66793. These commenters argued that states are best positioned to understand[] . . . regional patterns in their labor markets, local commuting burdens, and other local nuances specific to ABAWDs, id., and that years of FNS guidance and USDA’s longstanding position granting states flexibility to group substate areas had embraced that assessment of state expertise, id. at 66794. [T]he Department disagree[d], concluding that arguments supporting state flexibility were outweigh[ed] by the need to address a problem identified by USDA. The Department has learned, through its extensive operational experience, the Final Rule stated, that this flexibility allows States to strategically group substate areas to maximize the geographic coverage of waived areas rather than to demonstrate high unemployment or a lack of sufficient jobs for ABAWDs . . . . Id. Commenters further objected, citing examples, that the area definition adopted was problematic because LMAs do not account for specific ABAWD commuting patterns and other factors specific to ABAWDs. Id. at 66793. USDA was not compelled by these comments or their suggested alternative groupings, however, concluding that LMAs remain the best available and most appropriate delineation because there are no Federally-designated areas that specifically assess commuting patterns and other related economic factors for ABAWDs. Id. The Final Rule further explained that USDA had redefined waiver area as LMA because USDA expects unemployed ABAWDs to proactively pursue any and all work and\/or work training opportunities within reasonable commuting distance of their homes. Id. at 66796. [G]enerally restricting waivers to qualifying LMAs, the Final Rule concluded, will result in a broader Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 14 of 84 15 application of the time limit, encourage geographic mobility among ABAWDs, and reduce dependence on government benefits. Id. at 66796. c. Carryover of Discretionary Exemptions Under the 2001 regulation, when a state did not use all of its exemptions in a given fiscal year, USDA increased the state’s discretionary exemptions for the following year by the unused balance. States were permitted to carryover indefinitely any unused exemptions. As a result, the Final Rule stated, States have accumulated extremely high amounts of unused discretionary exemptions that well exceed the number allotted to each State for the fiscal year. Id. at 66803. In fiscal year (FY) 2019, States earned approximately 1.3 million exemptions, but had about 7.4 million exemptions available for use in total due to the carryover of unused exemptions from previous fiscal years. Id. In USDA’s view, the indefinite carryover and accumulation of unused exemptions is inconsistent with Congress’ decision to limit the number of exemptions available to States in a given fiscal year, as expressed in 2015(o)(6)(C), (D), and (E). Id. Under the Final Rule, each state is of course still granted discretionary exemptions totaling 12% of the individuals in the state covered by the work requirements, as required by the statute. 7 U.S.C. 2015(o)(6)(E). This 12% is also supplemented by exemptions carried over from previous years, but this carry over is much more limited than under the 2001 regulation. Specifically, the Final Rule allow[s] States to carry over only one year’s worth of exemptions from previous years. Id. at 66803. The Final Rule does not allow States to retain their existing accumulated exemptions past the end of FY 2020. Id. USDA planned to implement this change during the next scheduled calculation of exemptions, for FY 2021, on October 1, 2020. Id. at 66804. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 15 of 84 16 C. Procedural Background Six weeks after publication of the Final Rule, on January 16, 2020, 14 states, the District, and New York City sued under the APA to challenge the Rule. See Complaint, D.C. et al. v. U.S. Dep’t of Agric., et al., 20-cv-119, ECF No. 1. An amended complaint, filed January 29, 2020, added five new states as plaintiffs. See States’ Amended Compl. at 1 3, ECF No. 19. Joining the District and the City of New York in this suit are New York, California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Virginia, and Vermont (collectively, the state plaintiffs). See id. Their complaint challenges the Final Rule under the APA as arbitrary and capricious, contrary to law, and promulgated without observing procedural requirements. See 5 U.S.C. 706(2)(A), (D); see also States’ Amended Compl. \u00b6\u00b6 461 71 (contrary to law); id. \u00b6\u00b6 472 77 (procedural claim); \u00b6\u00b6 478 82 (arbitrary and capricious). When they filed their initial complaint, the original state plaintiffs moved for a preliminary injunction or for a stay of the Final Rule pending judicial review. See 5 U.S.C. 705; see generally State Pls.’ Mot. Also, on January 16, 2020, Bread for the City ( BFC ) and the individual plaintiffs filed a separate suit making the same claims as the state plaintiffs about the waiver portions of the Final Rule, see generally Private Pls.’ Compl., and moved for a preliminary injunction, see Private Pls.’ Mot. The private plaintiffs do not challenge the discretionary exemption aspect of the Final Rule. The two suits were consolidated under Federal Rule of Civil Procedure 42 without objection from the parties, on January 23, 2020. See Min. Order on Consolidation (Jan. 23, 2020).5 5 USDA, George Ervin Purdue, III, in his official capacity as Secretary of Agriculture, and the United States are named as defendants in the state plaintiffs’ suit, see States’ Amended Compl. at 3, while USDA and the United Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 16 of 84 17 At the Court’s direction, the parties conferred and proposed a schedule for briefing on the pending motion for preliminary injunctive relief, see Min. Order (Jan. 21, 2020); Notice of Joint Proposed Schedule and Positions Regarding Consolidation, ECF No. 10. The briefing schedule proposed by the parties was adopted, with their proposed date for a hearing moved up a week earlier. Scheduling Order (Jan. 23, 2020). USDA opposed the preliminary injunction, see Defs.’ Consolidated Opp’n to Pls.’ Mots. for Prelim. Inj. ( USDA’s Opp’n ), ECF No. 26, and the plaintiffs filed replies in support of their motions, see Private Pls.’ Reply in Supp. of Mot. for Prelim. Inj. ( Private Pls.’ Reply ), ECF No. 30; Pls.’ Reply in Supp. of Mot. for Prelim. Inj. or 5 U.S.C. 705 Stay Pending Judicial Review ( State Pls.’ Reply ), ECF No. 31.6 A hearing on these pending motions was held on March 5, 2020. II. LEGAL STANDARD A preliminary injunction is a stopgap measure, generally limited as to time, and intended to maintain a status quo or ‘to preserve the relative positions of the parties until a trial on the merits can be held.’ Sherley v. Sebelius, 689 F.3d 776, 781 82 (D.C. Cir. 2012) (quoting Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981)). To obtain a preliminary injunction, the plaintiffs must establish that (1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in their favor, and (4) an injunction is in the public interest. See Winter v. Natural Res. Def. States are named in the suit brought by BFC and the individual plaintiffs, see Private Pls.’ Compl. at 1. USDA, the Secretary, and the United States are defendants in the consolidated suit and are collectively referred to as USDA. 6 The United States House of Representatives filed an amicus brief in support of the plaintiffs, see Br. of U.S. House of Rep. as Amicus Curiae in Supp. of Pls. ( House Amicus Br. ), ECF No. 16, and organizations that study, develop and support certain welfare reforms, Amici Curiae Br. of the Foundation for Gov’t Accountability et al., ECF No. 37, as well as nine states \u2014 Arizona, Alabama, Arkansas, Georgia, Kentucky, Louisiana, Nebraska, South Carolina, and Texas \u2014 submitted amici briefs in support of the USDA, see Br. of Amici States of Ariz. et al. ( State Amici Br. ), ECF No. 42. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 17 of 84 18 Counsel, 555 U.S. 7, 20 (2008).7 The first factor is also the most important factor. Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014). A preliminary injunction is an extraordinary . . . remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion on each of the factors. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (emphasis omitted) (quoting 11A C. Wright, A. Miller, & M. Kane, FEDERAL PRACTICE AND PROCEDURE 2948 (2d ed.1995)). Section 705 of the APA authorizes the reviewing court to stay the effective date of an agency action pending judicial review to prevent irreparable injury. 5 U.S.C. 705. The factors governing issuance of a preliminary injunction also govern issuance of a 705 stay. See, e.g., Texas v. EPA, 829 F.3d 405, 424, 435 (5th Cir. 2016); Humane Soc’y of United States v. Gutierrez, 558 F.3d 896, 896 (9th Cir. 2009); Cuomo v. U.S. Nuclear Regulatory Comm’n, 772 F.3d 972, 974 (D.C. Cir. 1985). III. DISCUSSION The discussion begins with review of the state plaintiffs’ challenge to the discretionary exemption aspect of the Final Rule and concludes this challenge is not likely to succeed on the merits. The state plaintiffs’ motion for a preliminary injunction as to that aspect of the Final Rule is thus denied. The discussion next turns to plaintiffs’ arbitrary and capricious challenges to the waiver aspects of the Final Rule and concludes that these claims are highly likely to succeed. All the plaintiffs have also shown that implementation of those aspects of the Final Rule will cause them 7 The D.C. Circuit has previously followed a sliding scale approach to evaluating preliminary injunctions, but that approach is likely inconsistent with Winter, see Archdiocese of Washington v. WMATA, 897 F.3d 314, 334 (D.C. Cir. 2018) (observing that Winter may be properly read to suggest a ‘sliding scale’ approach to weighing the four factors be abandoned), and therefore will not be employed here, see Singh v. Carter, 185 F. Supp. 3d 11, 16 (D.D.C. 2016). Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 18 of 84 19 irreparable harm. The balance of the equities and the public interest further weigh in favor of preliminary relief for the plaintiffs. Finally, the discussion addresses the proper scope of the relief, determining that a nationwide injunction of the waiver parts of the Final Rule is consistent with D.C. Circuit precedent and necessary to provide complete relief. A. State Plaintiffs Are Not Likely To Succeed In Challenging The Final Rule’s Discretionary Exemption Change The state plaintiffs claim that the discretionary exemption aspect of the Final Rule is unlawful in two respects. According to these plaintiffs, first, the Final Rule’s limitation on the carryover of unused exemptions to one year runs afoul of the statutory scheme, State Pls.’ Mem. at 24, and, second, this part of the Final Rule is arbitrary and capricious, by fail[ing] to address significant reliance interests, id. at 37. States are understandably upset that USDA’s Final Rule radically changes a longstanding policy to the states’ detriment. Indeed, most of the fifty states may stand to lose accumulated exemptions on October 1, 2020, when the discretionary exemption portion of the Final Rule becomes effective.8 That said, [a]gencies are free to change their existing policies, even to change existing policies to the significant detriment of states or other parties, as long as [agencies] provide a reasoned explanation for the change and ground the change in a reasonable interpretation of the governing statute. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016). USDA likely satisfied that standard here, so plaintiffs’ motion for preliminary relief will be denied as to the discretionary exemption aspect of the Final Rule. 8 The current record is not clear on this point, but any state with areas subject to the work requirements at some point since 1999, when carry over began, could lose carried over exemptions as a result of the Rule. The District has had a statewide waiver since the enactment of the work requirements and therefore has not accumulated any exemptions. See Rough Hr’g Tr. at 32:7 23. Four other jurisdictions currently have statewide waivers, but the record does not indicate whether those statewide waivers have been in effect since 1999 as in the District. See id. at 32:1 6. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 19 of 84 20 The state plaintiffs’ argument about the Final Rule being contrary to law is governed by the test from Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). At Chevron step one, a court asks whether Congress has directly spoken to the precise question at issue. Id. at 842. If Congress has spoken, then the agency action comports with the law only if the action give[s] effect to the unambiguously expressed intent of Congress. Id. at 842 43. If Congress has been silent or ambiguous on the question at issue, then, at Chevron step two, the court asks whether the agency’s action is based on a permissible construction of the statute, and the court must defer to the agency’s interpretation if reasonable. Id. at 843. Section 2015(o)(6)(E) allows states to exempt from SNAP program work requirements 12% of ABAWDs, a reduction in the 15% exemption limit that applied before fiscal year 2020. See 7 U.S.C. 2015(o)(6)(C) (D). Section 2015(o)(6)(G) instructs USDA to adjust this 12% limit annually. Specifically, USDA is to increase or decrease the number of individuals who may be granted an exemption by a State agency . . . to the extent that the average monthly number of exemptions in effect in the State for the preceding fiscal year . . . is lesser or greater than the average monthly number of exemptions estimated for the State agency for such preceding fiscal year. Id. 2015(o)(6)(G). The state plaintiffs argue that 2015(o)(6)(G) unambiguously requires USDA to compare the number of exemptions used in the prior year to the number of exemptions available in the prior year, including all exemptions carried over from prior years, and then carry over the difference. See State Pls.’ Mem. at 24 (stating that the provision requires the Secretary to . . . effect[] an ongoing ‘carry-over’ of exemptions from prior years: the underuse of exemptions in one year will increase the number of exemptions available in the next year, and that underuse compared in the second year will roll over to the third and so forth ). Under this reading, the Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 20 of 84 21 state plaintiffs construe the phrase average monthly number of exemptions estimated . . . for the preceding fiscal year to mean the number of exemptions available in the prior year, without regard to whether those exemptions were initially granted in the prior year or, say, twenty years ago in 1999. 7 U.S.C. 2015(o)(6)(G). That phrase could bear the state plaintiffs’ reading, but it could also bear USDA’s. To USDA, the statute is at best ambiguous on the issue of whether number of exemptions estimated . . . for the preceding fiscal year should include exemptions carried over from years prior to the preceding fiscal year. 7 U.S.C. 2015(o)(6)(G). If anything, in USDA’s view, the statutory language’s focus on the ‘preceding fiscal year,’ USDA’s Opp’n at 30 (quoting 7 U.S.C. 2015(o)(6)(G)), means that Congress intended USDA to credit unused exemptions granted in the preceding year but not unused exemptions granted in any number of prior years. A statute that can bear multiple plausible meanings is ambiguous at Chevron step one. See, e.g., Whitaker v. Thompson, 353 F.3d 947, 949 50 (D.C. Cir. 2004) (seeing no basis for finding any unambiguously expressed intent of Congress where the sentences at issue might mean one thing and might mean another (internal quotation marks omitted)). In reply, the plaintiffs argue that, even if the statute’s text appears ambiguous, the legislative history unambiguously contemplates their reading. State Pls.’ Reply at 16. Even assuming that legislative history could make ambiguous text clear at Chevron step one, the legislative history does not do what the state plaintiffs say it does.9 The 2018 Farm Bill reduced the percentage of available exemptions from 15% to 12% starting in FY 2020. Agriculture 9 The state plaintiffs argue that to the extent that congressional silence on time limits is ambiguous, legislative history can fill the gap as to Congress’s intent at Chevron step one, but they point to no case in which a court has used legislative history to deem ambiguous statutory language clear. State Pls. Reply at 17. The typical use of legislative history at Chevron step one is to shed new light on an ambiguity in congressional intent, notwithstanding statutory language that appears superficially clear. Nat. Res. Def. Council, Inc. v. Browner, 57 F.3d 1122, 1125 (D.C. Cir. 1995) (quoting Am. Scholastic TV Programming Found. v. FCC, 46 F.3d 1173, 1180 (D.C. Cir. 1995)). Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 21 of 84 22 Improvement Act of 2018, Pub. L. No. 115-334, 4005, 132 Stat. 4490, 4632 (2018); see also 7 U.S.C. 2015(o)(6)(E). While the Senate version of the Farm Bill left exemptions untouched, see H.R. 2, 115th Cong. 4103(F) (June 28, 2018) (Engrossed Amendment in Senate), the House version had not only reduced the percentage to 12%, albeit starting in 2026, but also entirely eliminated exemption carry over, see H.R. 2, 115th Cong. 4015(a)(G)(iv) (June 21, 2018) (Engrossed in House). State plaintiffs rest their argument on the following sentence in the Conference Report explaining the Farm Bill’s ultimate compromise: States will maintain the ability to exempt up to 12% of their SNAP population subject to ABAWD work requirements, down from 15%, and continue to accrue exemptions and retain any carryover exemptions from previous years, consistent with current law. H.R. Rep. No. 115-1072, at 616 (2018) (Conf. Rep.) (quoted in State Pls.’ Mem. at 24 and State Pls.’ Reply at 17). Crediting plaintiffs’ reading of this sentence as a congressional attempt to clarify that exemptions carry over from previous years, in the plural, does not, however, dictate the result they want of rendering clear otherwise ambiguous statutory language on this point. See NLRB v. Health Care & Ret. Corp. of Am., 511 U.S. 571, 582 (1994) ( [I]t is the function of the courts and not the Legislature, much less a Committee of one House of the Legislature, to say what an enacted statute means. (alteration in original) (quoting Pierce v. Underwood, 487 U.S. 552, 566 (1988)); Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118 n.13 (1980) (dismissing similar argument by recognizing that a mere statement in a conference report of subsequent legislation as to what the Committee believes an earlier statute meant is obviously not authoritative of the original statute’s meaning); Eagle Pharm. Inc. v. Azar, No. 18-5207, slip op. at 30 (D.C. Cir. Mar. 13, 2020) (stating that legislative history from subsequent legislation is particularly unhelpful and Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 22 of 84 23 less persuasive than legislative history from the original legislation); Verizon v. FCC, 740 F.3d 623, 639 (D.C. Cir. 2014) (stating the general rule of statutory interpretation that subsequent failed legislation tell[s] us little if anything about the original meaning of a statutory provision). Moreover, the Conference Report’s statement was made in the specific context of explaining the Conference Committee’s decision to reject the House’s total elimination of carryover exemptions and does not purport to bar agency action in the future. Put another way, this legislative history does not supplant statutory language nor amount to a congressional command requiring USDA to retain forever into future rulemakings the 2001 regulation’s method of carrying over exemptions indefinitely. Such a command would need to be clearly stated in the statute. See Health Care & Ret. Corp. of Am., 511 U.S. at 582 (reaffirming that statements in committee reports do not have ‘the force of law, for the Constitution is quite explicit about the procedure that Congress must follow in legislating’ (quoting Am. Hosp. Ass’n. v. NLRB, 499 U.S. 606, 616 (1991)); Puerto Rico Dep’t of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 501 (1988) ( [U]nenacted approvals, beliefs, and desires are not laws. ). The state plaintiffs’ statutory argument thus fails because the statute bears multiple readings and USDA has settled on one permissible reading of the statute. See Chevron, 467 U.S. at 843 (instructing courts to reach Chevron step two if the statute is ambiguous and to defer to the agency if the agency’s reading is a permissible construction ).10 10 The state plaintiffs also argue, in a single sentence, that the Final Rule is contrary to law because it violates the APA’s prohibition on retroactive legislative rules. See State Pls.’ Mem. at 25; see also State Pls.’ Reply at 17 n.7 (preserving this argument). State plaintiffs are also unlikely to succeed on this theory, at least as currently presented. Distinctions are drawn, as a legal mater, between a rule that imposes new sanctions on past conduct, which is retroactive and invalid [under the APA] unless specifically authorized, and one that merely ‘upsets expectations,’ which is secondarily retroactive and invalid only if arbitrary and capricious. Nat’l Petrochemical & Refiners Ass’n v. EPA, 630 F.3d 145, 159 (D.C. Cir. 2010) (citing Nat’l Cable & Telecomms. Ass’n v. FCC, 567 F.3d 659, 670 71 (D.C. Cir. 2009)). The Final Rule merely upsets expectations by impair[ing] the future value of past years’ carried over exemptions and is thus valid unless arbitrary and capricious. Id. at 161 (quoting Nat’l Cable, 567 F.3d at 670). The Final Rule does not alter the past legal consequences of past decisions about carrying over exemptions. See Mobile Relay Assocs. v. FCC, 457 F.3d 1, 11 (D.C. Cir. 2006) ( [A]n agency order that ‘alters Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 23 of 84 24 State plaintiffs next argue that the Final Rule is arbitrary and capricious for several reasons. First, state plaintiffs believe the Final Rule is unreasoned. State Pls.’ Mem. at 37. The Final Rule explained USDA’s view that the indefinite carryover . . . of unused exemptions is inconsistent with Congress’ decision to limit the number of exemptions available to States in a given fiscal year, as expressed by sections 6(o)(6)(C), (D), and (E). 84 Fed. Reg. at 66802 (citing 7 U.S.C. 2015(o)(6)(C) (E)). The Final Rule further illustrated that the number of unused discretionary exemptions accumulated by states well exceed[s] the number allotted to each state for the fiscal year. Id. In FY 2019, States earned approximately 1.3 million exemptions, but had about 7.4 million exemptions available for use in total due to the carryover of unused exemptions from previous fiscal years. Id. As the agency noted in the Proposed Rule, a 2016 USDA Office of the Inspector General (OIG) report expressed [c]oncerns about whether such vast accumulation of exemptions was what the statute intended. 84 Fed. Reg. at 988; see also USDA’s Opp’n, Casey McConnell Decl. ( McConnell Decl. ), Ex. 1, FNS Controls Over SNAP Benefits for Able-Bodied Adults Without Dependents ( OIG Report ) at 10 11 (Sept. 2016), ECF No. 26-1. These were entirely rational reasons to revise how discretionary exemptions were carried over. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 517 (2009); see also Rust v. Sullivan, 500 U.S. 173, 187 (1991) (deeming justified with reasoned analysis a change in policy that the agency viewed as more in keeping with the the future effect, not the past legal consequences’ of an action, Sinclair Broad. Group v. FCC, 284 F.3d 148, 166 (D.C. Cir. 2002), or that ‘upsets expectations based on prior law,’ DIRECTV, Inc. v. FCC, 110 F.3d 816, 826 (D.C. Cir. 1997) (quotation omitted), is not retroactive in the way the APA forbids.). State plaintiffs argue that [b]y cancelling previously accumulated exemptions aside from those accrued in the preceding fiscal year, the Rule impermissibly extinguishes prior state rights without specific authorization. State Pls.’ Mem. at 24. The analysis of the statute above, however, demonstrates that the legal status quo ante did not create inalienable rights to maintain unused exemptions beyond the next fiscal year. Bergerco Canada, a Div. of Conagra, Ltd. v. U.S. Treasury Dep’t, 129 F.3d 189, 193 (D.C. Cir. 1997); see also Celetronix Telemetry, Inc. v. FCC, 272 F.3d 585, 589 (D.C. Cir. 2001) (holding that no vested right existed for purposes of retroactivity analysis where the prior system offered no vested right to any specific terms of a license and the agency always retained the power to alter the term of existing licenses by rulemaking ). Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 24 of 84 25 original intent of the statute and that relied on OIG reports concluding that prior policy did not properly implement the statute). Second, the state plaintiffs argue that the Final Rule summarily discounts the numerous comments that relay the importance of the exemptions in enabling states to nimbly respond to swift economic downturns or changes in employment conditions. State Pls.’ Mem. at 37. To the contrary, USDA agree[d] with comments that demonstrate[d] the importance of discretionary exemptions. 84 Fed. Reg. at 66803. The agency simply concluded that those comments did not demonstrate that states needed to retain unused exemptions indefinitely to enable nimble response to changing conditions. Id. That conclusion appears rational in light of the evidence before the agency. States’ history of accumulating rather than using exemptions \u2014 such that 82.5% of exemptions in effect in 2019 were carried over from past years \u2014 is consistent with the agency’s determination that exemptions could be scaled back without threatening states’ ability to deal with potential unforeseen sharp economic declines or other quickly changing circumstances. Id. Finally, the state plaintiffs argue that the Final Rule fails to confront the serious reliance interests of states that have accumulated exemptions for many years. State Pls.’ Mem. at 37. Those reliance interests are undoubtedly serious, but reliance does not overwhelm good reasons for a policy change, Encino Motorcars, 136 S. Ct. at 2128 (Ginsburg, J., concurring), and USDA appears to have given good reasons here. An explanation of why one policy ‘is more consistent with statutory language’ than alternative policies is a good reason for a policy change, id. (majority opinion) (quoting Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 175 (2007)), as is remediating a concern identified in an OIG report, see Rust, 500 U.S. at 187 (upholding a change in policy that relied in part on OIG reports). Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 25 of 84 26 Furthermore, the Final Rule explicitly confronted and considered the states’ reliance interests. As already noted, USDA acknowledged that discretionary exemptions were important to states but reasonably concluded that more limited carryover would still allow states the flexibility to respond to suddenly changing circumstances. 84 Fed. Reg. at 66803. In addition, recognizing that states with accumulated exemptions may have created policies and plans on the assumption that those exemptions would be available into the future, USDA chose to implement the change in October 2020, rather than April 2020, to give states time to make significant changes to their current systems of exemption use to ensure they do not overuse exemptions once the Final Rule goes into effect. Id. at 66804. In sum, the state plaintiffs have not shown a likelihood of success on the merits of their challenges to the discretionary exemption aspects of the Final Rule. Further, without fully analyzing the matter, the Court notes that the plaintiffs may face an uphill battle in showing irreparable harm. For one, this aspect of the Final Rule does not become effective until October 1, 2020, and harm that is eight months away may not be sufficiently immediate. For another, on this record, states may struggle to establish that ending indefinite carryover of discretionary exemptions will have a certain impact. This is not to diminish the importance of discretionary exemptions, especially in responding to sudden events like manufacturing plant closures, or even pandemics. That said, some states and areas, including the District and New York City, have earned no or very few exemptions because they have been under waivers for quite some time, and thus are not impacted at all by the elimination of indefinite carryover. Further, states will continue to earn exemptions yearly at the rate of 12% of covered individuals, and the states’ declarations are vague in their assertions about whether that continued accrual is insufficient to continue to exempt the individuals whom the states have been Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 26 of 84 27 exempting. See, e.g., Catherine Buhrig Decl. ( Buhrig Decl. ) \u00b6 17, ECF No. 3-4 (noting that Pennsylvania currently has approximately 160,000 exemptions, will lose 140,000 with the result that the State may not be able to exempt everyone that it has exempted in the past, but without stating the number actually needed (emphasis added)); Alexis Carmen Fern\u00e1ndez ( Fern\u00e1ndez Decl. ) \u00b6\u00b6 19 22, ECF No. 3-5 (stating simply that California has 850,000 carried over exemptions and asserting that these are instrumental in providing food benefits in the six counties currently implementing the time limit, but without stating the number actually needed). The state plaintiffs’ motion for preliminary relief as to those aspects of the Final Rule is denied. See Munaf v. Geren, 553 U.S. 674, 705 (2008) (reversing entry of a preliminary injunction where the movant failed to show likelihood of success on the merits); see also, e.g., Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 10 (D.C. Cir. 2019) ( [B]ecause the plaintiffs have shown no likelihood of success on the merits, we choose not to ‘proceed to review the other three preliminary injunction factors.’ (quoting Ark. Dairy Coop. Ass’n v. USDA, 573 F.3d 815, 832 (D.C. Cir. 2009))); Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1296 (D.C. Cir. 2009) (Kavanaugh, J., concurring) ( Munaf means that a strong showing of irreparable harm, for example, cannot make up for a failure to demonstrate a likelihood of success on the merits. ); cf. Citizens for Responsibility & Ethics in Wash. v. FEC, 904 F.3d 1014, 1019 (D.C. Cir. 2018) (per curiam) (stating that a movant’s failure to show likelihood of success on the merits is an arguably fatal flaw for a stay [pending appeal] application. ). B. Plaintiffs Are Likely To Succeed On The Merits Of Their Arbitrary And Capricious Claim Challenging The Final Rule’s Waiver Changes The APA requires reviewing courts to hold unlawful and set aside agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 27 of 84 28 706(2)(A). An agency action that ‘entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise’ is arbitrary and capricious. Gresham v. Azar, 950 F.3d 93, 99 (D.C. Cir. 2020) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). That is not a high bar, the Supreme Court has observed, but it is an unwavering one. Judulang v. Holder, 565 U.S. 42, 45 (2011). The plaintiffs are likely to succeed on their claim that the waiver changes in the Final Rule are arbitrary and capricious. Given this, the plaintiffs’ other APA claims \u2014 that the Rule is contrary to law and was promulgated without observing procedural requirements \u2014 need not be addressed at this stage of the case.11 The Rule’s severe reduction of the allowable criteria for demonstrating lack of sufficient jobs is addressed first before turning to the Rule’s redefinition of area. 11 To be clear, the plaintiffs’ contrary to law arguments are addressed to the extent those arguments overlap with their arbitrary and capricious claim. See infra Part III.B.1. The private plaintiffs’ contrary to law argument that USDA exceeded its rulemaking authority by promulgating a rule that substantially displace[d] the waiver adjudication process established by Congress, Private Pls.’ Mem. at 21, is not addressed. Further, the state plaintiffs’ procedural claim stemming from USDA’s reliance on the phrase operational experience, see State Pls.’ Mem. at 17, is addressed to the extent it overlaps with their arbitrary and capricious claim, see infra Part III.B.2. The decision to postpone consideration of any arguments at this stage in no way reflects any assessment that those arguments are less likely to succeed. Pointing to case law holding that the APA’s notice and comment requirements are not satisfied where the agency does the opposite of what it proposed, see State Pls.’ Mem. at 14 (citing, for example, Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1110 11 (D.C. Cir. 2014)), the plaintiffs argue that USDA did not provide adequate notice of its decision to eliminate state waivers based on the state’s qualification for extended unemployment benefits, id. The Proposed Rule stated the opposite: that USDA would continue to approve a state’s waiver request that is based upon the requesting state’s qualification for extended unemployment benefits. 84 Fed. Reg. at 985. The state plaintiffs further argue that the Proposed Rule did not give notice that LMAs would be the sole geographical unit for a waiver, and that this failure deprived Plaintiffs and the public of meaningful comment on a consequential aspect of the Final Rule. State Pls.’ Mem. at 14, 16 (emphasis added). USDA counters that the Final Rule was a logical outgrowth of the notice and by attempting to distinguish the case law plaintiffs rely on. See USDA’s Opp’n at 48 52. USDA suggests that these procedural challenges may be best evaluated on a full administrative record, which is currently being compiled. See USDA’s Opp’n at 4 (arguing that plaintiffs’ procedural claims founder in light of the administrative record ); see also McConnell Decl. \u00b6 34 ( USDA-FNS is in the process of compiling the administrative record for this case. ). The Court accepts that suggestion given that the preliminary injunction motion may readily be resolved on other grounds. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 28 of 84 29 1. The Rule’s Adoption of New Criteria Governing Approval of Waivers is Likely Arbitrary and Capricious The plaintiffs are likely to show that the Rule’s adoption of new criteria for evaluation of waivers is arbitrary and capricious in two respects. First, the agency’s decision to eliminate measures of insufficient jobs other than 24-month average unemployment rate runs counter to evidence before the agency, and USDA’s decision to depart from that evidence was inadequately explained. Second, USDA’s singular reliance on unemployment rates in implementing 7 U.S.C. 2015(o)(4)(A) was arbitrary and capricious in light of the statutory language, structure, and other indicia of congressional intent. a. Decision to Eliminate Measures of Insufficient Jobs Other than 24- Month Average Unemployment Rate Voluminous evidence supported the commenters’ view that general unemployment rates alone cannot measure whether an area has a sufficient number of jobs to provide employment for the individuals. 7 U.S.C. 2015(o)(4)(A)(ii) (emphasis added). As already reviewed, the Rule summarized analysis and research submitted by the commenters indicating that ABAWDs faced greater barriers to employment than the general population because ABAWD tended to have lower educational levels, higher levels of disability and homelessness, worse access to transportation, and were more likely to have prior criminal convictions and to experience racial discrimination. See, e.g., 84 Fed. Reg. at 66787 (reciting data from critical commenters based on the 2017 USDA Household Characteristics data, that non-disabled individuals aged 18 through 49 in households without children in SNAP report lower than average educational attainment (citation omitted)); id. (noting submitted research indicating that, on average, unemployment rates for people with low-education attainment are much higher than what BLS unemployment rates for the general public indicate ); id. (stating that [c]ommenters provided research indicating that lower unemployment rates are less indicative of Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 29 of 84 30 strong labor markets in recent years than in the past, and particularly for those with lower levels of education ); id. (observing that research indicat[es] that employment rates for workers with low levels of education still have not recovered from the recession and pointed to evidence that workers with less education may be hit harder by recessions ); id. (considering USDA- commissioned analysis that those subject to SNAP work requirements face substantial barriers to employment. ). USDA waved away these commenters’ concerns and their supporting evidence in a few sentences of defective argument. Although USDA conceded that ABAWDs may face barriers to employment and have more limited employment prospects than the general public, 84 Fed. Reg. at 66787, it insisted, based on its operational experience, that areas that do not clearly lack sufficient jobs will continue to qualify for waivers without the Rule’s limitations. Id. Putting the lesson slightly differently, the Rule also stated that, [t]hrough its operational experience, the Department has recognized that measures not based on unemployment rates are less reliable and consistent that standard unemployment data in demonstrating a lack of sufficient jobs. Id. at 66791. USDA’s sole supporting example was that, if evaluation of sufficient jobs were not pegged to unemployment rates, and specifically to unemployment rates over 6%, then a state could request and qualify for a waiver in areas with an unemployment rate as low as of 4.7 percent. Id. at 66787. USDA’s logic is arbitrary because it is circular. The agency erases the concern that general unemployment rates are an inappropriate measure of lack of sufficient jobs for ABAWDs by redefining the thing to be measured in terms of the agency’s preferred measure, namely, general unemployment rates. USDA’s example suffers from the same defect of Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 30 of 84 31 circularity. USDA’s semantic trick does not address the evidence that the Final Rule simply is not measuring what the statute requires: the lack of sufficient jobs for ABAWDs. USDA gave no other reason for its tunnel-vision embrace of unemployment rates. Indeed, USDA has embraced non-unemployment rate based measures since 1996, including in the 2001 regulation. A new policy of viewing these measures as unreliable or inconsistent for purposes of assessing whether an area has a sufficient number of jobs to provide employment for the individuals, 7 U.S.C. 2015(o)(4)(A)(ii), cannot be justified by merely recit[ing] the terms reliable and consistent. State Farm, 463 U.S. at 52.12 Instead, when faced with considerable evidence that its preferred measure was inappropriate or incomplete in the precise context defined by the statute, the agency needed to provide a meaningful response to that evidence and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)); see also, e.g., Gresham, 950 F.3d at 103 (deeming an agency’s decision arbitrary and capricious when it dismiss[ed] important concerns in a handful of conclusory sentences ); Am. Wild Horse Pres. Campaign v. Purdue, 873 F.3d 914, 932 (D.C. Cir. 2017) (vacating an agency’s action that brushed aside critical facts and failed to adequately explain or adequately analyze its policy choice); Tesoro Alaska Petroleum Co. v. FERC, 234 F.3d 1286, 1294 (D.C. Cir. 2000) ( The Commission’s failure to respond meaningfully to the evidence renders its decisions arbitrary and capricious. ). 12 In addition, a look at the full Final Rule indicates that the agency embraced DOL data inconsistently. USDA invoked the supposedly superior reliability of DOL data in eliminating three measures of job availability in the 2001 regulation \u2014 a declining employment-to-population ratio, jobs in declining industries or occupations, and description in an academic study or publication as an area lacking jobs, 84 Fed. Reg. at 66790 \u2014 but failed to acknowledge or address this preference for DOL data in rejecting a measure that relied on DOL data \u2014 LSA designation by DOL, see id. at 66799. Such inconsistency is a signal of arbitrary decisionmaking. ANR Storage Co. v. FERC, 904 F.3d 1020, 1024 (D.C. Cir. 2018) (stating that an agency’s reasoning cannot be internally inconsistent (citing Sierra Club v. EPA, 884 F.3d 1185, 1194 96 (D.C. Cir. 2018)). Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 31 of 84 32 USDA now argues that the eliminated metrics were rarely used, including by the state plaintiffs. USDA’s Opp’n at 40 (citing McConnell Decl., Exs. 13 28). To USDA, this shows that Plaintiffs’ true complaint is not with the use of unemployment rates, but with the height of the unemployment rate floor. Id. USDA’s view of the plaintiffs’ true complaint is beside the point: that many past or current waivers are based on unemployment rates does not change the record before the agency indicating problems with its approach or the inadequacy of the agency’s response to those problems. b. Singular Reliance on Unemployment Rates In 2015, Congress provided two criteria for waivers: (i) that an area has an unemployment rate of over 10 percent; or that the area (ii) does not have a sufficient number of jobs to provide employment for the individuals. 7 U.S.C. 2015(o)(4)(A). State plaintiffs argue that the Rule unlawfully implements 2015(o)(4)(A) because neither of the Final Rule’s two core standards answers the question that Congress asked \u2014 whether an area actually has insufficient jobs to provide employment for ABAWDs. State Pls.’ Mem. at 22.13 Plaintiffs are 13 State plaintiffs frame their arguments about the Rule’s singular reliance on unemployment rates under the test from Chevron. In their view, the Rule falls at Chevron’s step one because the statutory language unambiguously forecloses the Rule’s near-total reliance on the general unemployment rate to meet the test. State Pls.’ Mem. at 21. USDA counters that the phrase in question . . . is the ‘antithesis of a Chevron step one statutory directive.’ USDA’s Opp’n at 23 (quoting Anna Jacques Hosp. v. Burwell, 797 F.3d 1155, 1164 (D.C. Cir. 2015)). The phrase sufficient number of jobs to provide employment for the individuals is not obviously unambiguous at Chevron step one, especially when read in light of the context, which signals congressional intent to delegate aspects of waiver determinations to the agency: the Secretary may waive the work requirements if the Secretary makes a determination that the area in which the individuals reside . . . does not have a sufficient number of jobs to provide employment for the individuals. 7 U.S.C. 2015(o)(4)(A). Thus, a Chevron analysis would likely proceed to step two. In any event, there is little distance between Chevron’s step two and arbitrary and capricious review under the APA. See Judulang v. Holder, 565 U.S. 42, 52 n.7 (2011) (stating that the analysis would be the same under Chevron step two and APA arbitrary and capricious review); see also Humane Soc’y of United States v. Zinke, 865 F.3d 585, 605 (D.C. Cir. 2017) ( [A]nalysis of the reasonableness of agency action ‘under Chevron Step Two and arbitrary and capricious review is often the same.’ (quoting Pharm. Res. & Mfrs. of Am. v. FTC, 790 F.3d 198, 209 (D.C. Cir. 2015)). [T]he more apt analytical framework in this case is standard ‘arbitrary [or] capricious’ review under the APA. Judulang, 565 U.S. at 52 n.7 (alteration in original) (quoting 5 U.S.C. 706(2)(A)). Although the Rule implements the statutory language of 7 U.S.C. 2015(o)(4)(A), the Rule does not dwell on an interpretation of any statutory language. Judulang, 565 U.S. at 52 n.7; see also Nat’l Ass’n of Regulatory Util. Comm’rs v. ICC, 41 F.3d 721, 727 (D.C. Cir. 1994) ( [A]lthough Chevron’s second step sounds closely akin to plain vanilla arbitrary- Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 32 of 84 33 likely to succeed on this claim that the Final Rule is an unreasonable construction of the statute, Guedes, 920 F.3d at 32 (articulating the Chevron step two standard), is arbitrary or capricious in substance, see Judulang, 565 U.S. at 52 n.7 (discussing Chevron step two), ignores relevant factors, and amounts to a clear error of judgment, State Farm, 463 U.S. at 42 43. The Final Rule adopts unreasonably narrow criteria for implementing the statutory requirements for evaluating waivers. Start with the statutory structure: prong one of 2015(o)(4)(A) addresses with precision one circumstance, an unemployment rate over 10%, that would warrant a waiver, while prong two states with greater generality that waivers may be granted for lack of sufficient jobs. USDA is right that prong two, in not prescribing a single permissible measure, necessarily leaves USDA with some discretion to define sufficient jobs. See USDA’s Opp’n at 23 24. Nevertheless, the statute’s two-pronged structure also plainly limits USDA’s discretion: if prong one addresses the circumstances under which unemployment rates would warrant a waiver, prong two must address a distinctive measure. By making both prongs of 2015(o)(4)(A) dependent on unemployment rate, USDA has arbitrarily written this distinction out of the Rule. See New York v. EPA, 443 F.3d 880, 887 (D.C. Cir. 2006) (setting aside an agency action, albeit at Chevron step one, based on an interpretation contrary to ‘[the] cardinal principle of statutory construction’ that words in the statute should not be made insignificant or superfluous (quoting TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)); Shays v. FEC, 414 F.3d 76, 105 (D.C. Cir. 2005) (vacating agency rules at Chevron step one because the and-capricious style review, interpreting a statute is quite a different enterprise than policy-making (internal quotation marks and ellipsis omitted)). Rather, the Rule primarily engages in policymaking. See Mozilla Corp. v. FCC, 940 F.3d 1, 49 (D.C. Cir. 2019) (stating that the Venn Diagram of the two inquiries is not a circle and explaining that, even where an agency adopts a reasonable interpretation of the statute for purposes of Chevron, the policy rationales underlying the agency action may still be arbitrary and capricious). As a result, this decision adopts the arbitrary and capricious framework but imports the parties’ Chevron arguments where applicable. Cf. USDA’s Opp’n at 31 n.12 (urging that its arguments that the Rule is not arbitrary and capricious should be applied in a Chevron step two analysis). Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 33 of 84 34 agency’s too narrow interpretation of a statutory term was implausible, and acknowledging that the district court reached the same result at Chevron step two). Section 2015(o)(4)(A)(ii)’s use of the phrase employment for the individuals cements this conclusion. That phrase is a guardrail on USDA’s discretion. It instructs USDA to determine whether an area has a sufficient number of jobs with some attention given to ABAWD-related measures.14 As already discussed, USDA has not adequately explained in this Rule that unemployment rates, taken alone, are such a metric. In USDA’s view, the Final Rule reasonably implements 2015(o)(4)(A) because [e]ven if ABAWDs may face more challenges to finding employment than the average person, the unemployment rate is not ‘a matter irrelevant to’ that inquiry. USDA’s Opp’n at 24 (quoting Judulang, 565 U.S. at 53). The statute undoubtedly makes unemployment rate a factor relevant to evaluating waivers, but that point sidesteps the flaw in the Final Rule’s core standards. The real issue is whether the Final Rule, in making general unemployment rates the only factor for evaluating waivers, permissibly interpret 2015(o)(4)(A). As just analyzed, based on the statutory structure and text and the Final Rule’s justification, the answer is no. Falling back, USDA says that, even if the statute does require consideration of more than unemployment rates, the Final Rule does so. See USDA’s Opp’n at 25. A provision states that USDA will grant a waiver based on other data or evidence if the state can demonstrate that [an] exceptional circumstance has caused a lack of sufficient jobs in an area. 84 Fed. Reg. at 66811. Although the provision parrots the statutory phrase sufficient jobs, the commentary 14 USDA relies on faulty logic to protest this reading, as untenable because it would bar[] USDA from approving a waiver under clause (ii) unless it has job availability information specific to the ABAWD population. USDA’s Opp’n at 24 (emphasis omitted). Not so: this reading would bar USDA from relying solely on measures so general that the ABAWD unemployment rate is essentially not counted, without requiring USDA to rely solely on ABAWD specific measures. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 34 of 84 35 makes clear the provision is designed to address extreme, dynamic circumstances, such as the rapid disintegration of an economically and regionally important industry or the prolonged impact of a natural disaster. Id. at 66792. The Final Rule’s examples illustrate the kind of other data or evidence USDA has in mind: a state might provide unemployment data or other evidence that is similar to the core standards except in that it covers a shorter duration because the area’s economy suffered a rapid decline . . . that is not yet demonstrated by a full 12-month or 24-month data period. Id. This is the same data, over a shorter duration, required by the core standards. The exceptional circumstances part of the Final Rule does not meaningfully broaden those criteria for evaluating waivers, and thus cannot save USDA here. Finally, recent legislative history is consistent with the conclusion that Congress intended the phrase lack of sufficient jobs for ABAWDs to capture a broader set of circumstances than those encompassed by the Rule. The House version of the 2018 Farm Bill proposed amending 2015(o)(4)(A) to limit waivers to areas (1) with an unemployment rate of over 10%; (2) designated as an LSA by DOL; (3) with a 24-month average unemployment rate at least 20% higher than the national average and above 7%; or (4) in states that are in an extended benefit period under federal law or in which temporary or emergency unemployment compensation is being provided under any Federal law. H.R. 2, 115th Cong. 4015(a)(1)(F) (June 21, 2018) (Engrossed in House). In other words, the House bill would have eliminated two of the current data sources available to states while retaining the criteria of LSA designation and eligibility for federal extended unemployment benefits. For the criterion measuring a higher unemployment rate than the national average, the House bill imposed a floor of an unemployment rate of 7%. The Senate version of the Farm Bill contained no restrictions on waivers. The Conference Committee rejected the House bill’s restrictions on waivers. In doing so, the Conference Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 35 of 84 36 Committee acknowledge[d] that waivers from the ABAWD time limit are necessary in times of recession and in areas with labor surpluses or higher rates of unemployment. H. Rep. No. 115- 1072 (2018) (Conf. Rept.) at 616. Congress’s recent rejection of waiver criteria less stringent than those ultimately adopted by USDA is probative of congressional intent to maintain flexibility in the waiver system. Tellingly, even the House version of the bill did not rely solely on unemployment rates, as USDA does in its Final Rule. USDA dismisses this legislative history, citing cases like those discussed above in rejecting the state plaintiffs’ legislative history argument about the discretionary exemptions. See USDA’s Opp’n at 31 32. There, the Conference Committee Report, which adopted one of two plausible readings of the statute, could not make the ambiguous statutory text clear or render USDA’s plausible reading unreasonable. See supra Part III.A. Here, by contrast, the Conference Committee Report and the history of the 2018 Farm Bill merely confirm the conclusion that USDA’s reading is unreasonable and arbitrary and capricious in substance, a conclusion that comport with the statute’s text and structure. Council for Urological Interests v. Burwell, 790 F.3d 212, 222 24 (D.C. Cir. 2015) (rejecting challenger’s argument based on a Conference Report that agency’s interpretation failed at Chevron step one but then remanding to the agency at Chevron step two because the agency’s interpretation was unreasonable in light of the Conference Report). 2. The Final Rule’s Redefinition of Waiver Area is Likely Arbitrary and Capricious Plaintiffs are likely to show that USDA’s decision to redefine area was arbitrary and capricious in two respects. First, USDA’s state abuse justification for this aspect of the Final Rule was wholly unsupported. Second, USDA responded inadequately to the considerable evidence suggesting that the new definition of area was inappropriate. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 36 of 84 37 a. State Abuse Rationale USDA adopted a strict definition of waiver ‘area’ because of its view, developed through operational experience, that [s]tates are grouping areas in such a way to maximize waived areas rather than demonstrate high unemployment or a lack of sufficient jobs for ABAWDs. 84 Fed. Reg. at 66794. Yet, USDA has provided no evidence that such state manipulation is a real problem. Nat’l Fuel Gas Supply Corp. v. FERC, 468 F.3d 831, 841 (D.C. Cir. 2006). Professing that an agency action ameliorates a real . . . problem but then citing no evidence demonstrating that there is in fact a[] . . . problem is not reasoned decisionmaking. Id. at 843 (citing State Farm, 463 U.S. at 42 43); see also id. at 841 (finding an agency order that posited a solution to a problem but provided no evidence of a real problem nor a single example of abuse to be arbitrary and capricious). In USDA’s view, it was enough under the APA that the Final Rule cited operational experience and explained the precise nature of [the agency’s] concerns through examples. USDA’s Opp’n at 36. This correctly articulates but misapplies the standard here. USDA relies on National Tour Brokers Association v. ICC, 671 F.2d 528 (D.C. Cir. 1982), which explained, [w]hile the practice is not without problems, an agency may rely on its ‘experience’ to provide the necessary factual support for a rule. Id. at 533. A problem for the agency in relying on its experience as factual support for its decision, however, is the necessity of adequately recording and explaining that experience on the record. Id. Part of recording and explaining experience, and part of judicial review of an agency’s reliance on experience, is assuring that any agency findings based on experience are themselves . . . factually supported in the administrative record. Id. USDA flatly fails that test. Factual support does not necessarily need to come in the form of empirical evidence or other concrete examples of abuse, as USDA recognizes. USDA’s Opp’n at 35 (citing Stilwell v. Office of Thrift Supervision, 569 F.3d 514, 519 (D.C. Cir. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 37 of 84 38 2009)). At the same time, factual support does need to be based in fact and real rather than manufactured. Nat’l Fuel Gas Supply Corp., 468 F.3d at 841; see also Nat’l Tour Brokers, 671 F.2d at 533 (looking to the agency’s factual support to decide whether the agency’s decision was the rational result of reasoned analysis ).15 USDA attempted to support its view that states are manipulating waiver groupings with three assertions. None holds up on examination. First, the Final Rule surmised that state waiver manipulation is one of the primary reasons why about half of the ABAWDs participating in SNAP live in waived areas, despite current low unemployment levels across the majority of the country. 84 Fed. Reg. at 66794. As the state plaintiffs observe, this statistic is unsurprising. State Pls. Mem. at 28. Of course, a substantial proportion of ABAWDs receiving benefits live in waived areas: ABAWDs outside of waived areas who cannot meet the work requirements have their benefits terminated rapidly, after just three months. This statistic could thus reflect the difficulties ABAWDs face in finding work to maintain their benefits outside of waived areas. Despite the existence of at least one readily apparent alternative account for this statistic, USDA articulated zero reasons for its assumption that about half is a suspiciously high share of ABAWDs to be living in waived areas. An unsupported assumption cannot sustain a key justification for a rule. See Nat’l Tour Brokers, 671 F.2d at 534 (requiring lessons from agency experience to have factual support). 15 USDA also relies on Pharm. Research & Mfrs. of Am. V. FTC (PhRMA), 44 F. Supp. 3d 95 (D.D.C. 2014) (Howell, C.J.), for the notion that [a]gency reliance is at its strongest when the agency invokes its experience not in defense of an ‘objectively or scientifically determinable’ decision, but rather to explain the very need for the very rule in question. USDA’s Opp’n at 36 (quoting PhRMA, 44 F. Supp. 3d at 129). That distinction is a red herring, as PhRMA applies the same standard as Nat’l Tour Brokers. In PhRMA, as here, the agency invoked its experience to explain the need for the rule. See 44 F. Supp. 3d at 128 29; see also Pharm. Research & Mfrs., 790 F.3d at 208 (explaining the rule). In PhRMA, unlike here, the agency provided specific and substantial factual support for its invocation of experience and clearly and reasonably explained why it adopted the Rule. Pharm. Research & Mfrs., 790 F.3d at 208 (observing that, in explaining its experience, the agency [s]pecifically described 66 relevant filings supporting the assertion about experience); see also PhRMA, 44 F. Supp. 3d at 129 n.15 (distinguishing cases in which agencies did not provide reasoning and did not reasonably reject the contrary evidence ). Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 38 of 84 39 Second, USDA saw as manipulative, 84 Fed. Reg. at 66793, state waiver applications that grouped nearly all contiguous counties in the State together while omitting a few counties with relatively low unemployment, id. at 66794. USDA’s assertion that these waivers reflect state abuse is not a finding supported by facts. See Nat’l Fuel Gas Supply Corp., 468 F.3d at 843. As support for this perceived problem, the Final Rule states only that such waivers allow states to maximiz[e] waived areas, 84 Fed. Reg. at 66794, but maximization is not self- evidently manipulative. In a belated attempt to better connect the dots between the facts and the assertion of state abuse, USDA now offers the slightly more specific argument that such waiver requests reveal that states conspicuously left out counties that would have jeopardized the request, USDA’s Opp’n at 35 (citing 84 Fed. Reg. at 986), while keeping in areas with low unemployment to obtain waivers for the latter areas simply by grouping them with areas of high unemployment, id. at 37.16 Grouping contiguous counties with relatively high unemployment while omitting contiguous counties with relatively low unemployment is entirely consistent with good faith efforts by states to target waiver requests to areas that lack sufficient jobs and to apply the work requirements in areas with enough jobs. The Final Rule does nothing to rebut this common 16 USDA cites the Proposed Rule for this jeopardy point, see USDA’s Opp’n at 35 (citing Rule 84 Fed. Reg. at 986), but the Proposed Rule simply states: Some States have grouped nearly all contiguous counties in the State together while omitting a few counties with relatively low unemployment in order to maximize the waived areas in the State. 84 Fed. Reg. at 986. That statement does nothing to provide concrete, factual examples that would fill in the gaps of the Final Rule. In opposing the plaintiffs’ motions, USDA also points to a 2016 USDA Office of the Inspector General (OIG) report stating that officials in three States told us they specifically requested ABAWD time limit waivers in as many parts of the State as possible to minimize the areas where they needed to track the ABAWD time limits. OIG Report at 5; see also USDA’s Opp’n at 35. The OIG Report is a post hoc rationale not mentioned in the Final Rule. See, e.g., SEC v. Chenery Corp., 318 U.S. 80, 94 95 (1943) (agency actions cannot be upheld based on after- the-fact reasoning). Nor is this admission indicative of abuse. The OIG finding came in the context of the OIG’s discussion of the difficulty and complexity of implementing PRWORA’s ABAWD time-tracking provisions. See OIG Report at 4 8 (findings and recommendations related to the difficulty of implementing the ABAWD provisions). The OIG’s report is consistent with the idea that the state grouping behavior USDA deemed manipulative is a feature of the statutory design rather than a product of state abuse. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 39 of 84 40 sense assessment of state behavior. A single comment referenced in the Final Rule speculates that states will seek to maximize any discretion in order to receive and use as much Federal money as possible. 84 Fed. Reg. at 66973. Speculation cannot substantiate the USDA’s assumption of bad faith by states here. See, e.g., Nat. Res. Def. Council, Inc. v. EPA, 859 F.2d 156, 210 (D.C. Cir. 1988) (holding that agency speculation is not adequate grounds upon which to sustain an agency’s action ). Third, USDA saw as manipulative, id. at 66793, state waiver applications that grouped certain towns together that share the same economic region while omitting others with relatively low unemployment from the group, id. at 66794. The Final Rule argues that this allowed states to obtain waivers for jurisdictions without consideration for job availability in nearby jurisdictions. Id. at 66796. For example, the Final Rule said, if a State has the choice to obtain waivers . . . for individual counties, . . . the State could waive the county without consideration for the job availability in its surrounding LMA. Id.17 Comments suggested motivations other than state manipulation for such a waiver request. For example, [c]ommenters argued that States have the best understanding of the regional patterns in their labor markets, local commuting burdens, and other local nuances specific to ABAWDs. Id. at 17 Although the Final Rule provided only this hypothetical example, USDA now points to two real examples that do not help its case. USDA says (1) that a resident of the neighborhood of Takoma in the District is subject to a waiver while a resident of Takoma Park, Maryland \u2014 immediately across the border (and perhaps even the street) \u2014 is not, USDA’s Opp’n at 38 (citing McConnell Decl., Ex. 14 (Maryland Waiver) and then citing McConnell Decl., Ex. 15 (D.C. Waiver); and (2) that a resident of Manhattanville in New York City is subject to a waiver even though residents of a community district blocks away might not be, id. (citing McConnell Decl., Exs. 9 & 16 (New York Waivers)). The first example provides no support for state waiver abuse because the District and Maryland, as different states, apply separately for waivers, based on analysis of data particular to their own jurisdictions. The second example is consistent with state expertise, not state abuse, as the waiver applications provided by USDA show that New York requested waivers for all of Upper Manhattan, including Manhattanville, but not elsewhere in New York City, such as the community district just beneath Manhattanville, which covers the neighborhood around Columbia University and the Upper West Side. See McConnell Decl., Ex. 9 at 5, Map 2; see also Steven Banks Decl. ( Banks Decl. ) \u00b6 14, ECF No. 3-1 (explaining that Upper Manhattan is by many measures distinct and separate from the rest of Manhattan ). Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 40 of 84 41 66793. Once again, USDA’s failure to engage with any of these readily apparent alternative explanations renders its assumption of state abuse inadequate. USDA and the state amici now point to waivers that will be in the administrative record, which has not yet been filed on the docket or produced to plaintiffs, allegedly exhibiting this pattern of gerrymandering, USDA’s Opp’n at 35, but these examples, which USDA’s brief makes no attempt to analyze, do not advance USDA’s defense, see McConnell Decl., Exs. 4 12, ECF No. 26-1 (providing example waiver requests). The state amici highlight a waiver application from California, which covered 52 counties that, together, had an average unemployment rate of 5.5%, exactly 20% above the national average unemployment rate at the time. State Amici Br. at 6 (discussing McConnell Decl., Ex. 4, ECF No. 26-1). The amici see three problems with this application: first, that the unemployment rate for the whole region is precisely at the threshold needed to get a waiver; second, that the waiver region spans over 800 miles; and, third, that some of the counties included in the waiver area had unemployment rates below 5.5%. See id. at 6 7. At the outset, in light of USDA’s insensitivity to the concerns of states, like the District, that LMAs are too large to be appropriate waiver areas, the irony cannot be missed that large waiver areas are cited as cause for suspicion. See Rough Hr’g Tr. at 80:25 (the Court noting this in question to USDA). Further, responding to state amici’s argument at the hearing, the state plaintiffs argued that amici’s analysis was overly simplistic. States consider more than just unemployment rate in designing waiver area, the state plaintiffs pointed out, including what areas are appropriately connected to each other for purposes of considering the inquiry of jobs for ABAWDs, whether [areas] are connected by affordable transportation or not, whether they share similar employment opportunities or not, and even whether the areas for which waivers are Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 41 of 84 42 not requested . . . had sufficient jobs for SNAP recipients living there as well as for the additional SNAP recipients in the waived areas if those waivers were not in place. Id. at 41:17 25. After all, USDA’s current regulation, which permits States to define areas to be covered by waivers and instructs them to provide data and analyses that correspond to the defined area or as closely to the area as possible, 7 C.F.R. 273.23(f)(6), gives states this responsibility because States are more familiar with the reality of employment challenges confronting AWAWBs in particular areas. More broadly, the state plaintiffs argued at the hearing that attempts to maximize waived areas are not in themselves manipulative. See id. at 49:24 50:14. To the contrary, plaintiff states viewed maximization within the waiver rules laid down by USDA as responsible state policy, preferring that funds appropriated for SNAP go directly to feed the needy rather than to bloat state agencies that enforce work requirements in unwaived areas. Id. at 50:10 14; cf. House Amicus Br. at 8 (stating that, during debate about the House version of the 2018 Farm Bill curtailing waivers, [c]oncerns were raised that, while millions of people under the House bill would be losing their benefits, much of this money would be used to pay for a new SNAP bureaucracy to enforce work requirements (internal quotation marks and alteration omitted)). Finally, the state plaintiffs argued that, if USDA had a different view of maximization, the agency could have use[d] a scalpel to look at . . . particular waiver requests carefully, seeking more information about or deny[ing] applications that USDA viewed as not supported by appropriate evidence. Rough Hr’g Tr. at 42:13 16. Instead, in state plaintiffs’ view, USDA thr[ew] out the baby with the bath water in radically redefining waiver areas. Id. at 42:17. If USDA did indeed think that states were manipulating the waiver process, then asking states why they were grouping as they were, requesting that states resubmit waiver applications Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 42 of 84 43 that USDA viewed as inappropriate, or outright denying such waiver applications, would have been a sensible course. USDA, it appears, did none of that.18 That history is another sign that USDA’s new policy eliminating state discretion in designing waiver areas is a solution in search of a problem. b. Problems with LMAs The plaintiffs also say that problems with USDA’s new definition of area in which the individuals reside rendered it arbitrary and capricious. 7 U.S.C. 2015(o)(4)(A). On the current record, the plaintiffs are likely to succeed on this argument because considerable evidence before USDA posited that LMA was an inappropriate definition of area, and USDA’s treatment of this evidence was wanting. Gresham, 950 F.3d at 102. That evidence showed LMAs are based on commuting patterns of the general workforce and thus cannot capture available employment for low-income, low-skilled ABAWDs who lack affordable transportation options. 84 Fed. Reg. at 66793. The mismatch between available employment for ABAWDs and available employment across an LMA is starkest in large urban areas. Take the District, an example before the agency. See id. at 66796 (alluding to the District). The LMA that includes the District comprises the District, sixteen counties in Virginia, five counties in Maryland, and one county in West Virginia. See Bolen Decl. \u00b6 29. As a result, District ABAWDs would be subject to the work requirement if the unemployment rate is low in suburbs and exurbs of the District as far out as 18 The Final Rule pointed out that USDA attempted in 2016 to clarify its intention that areas be economically tied through policy guidance. 84 Fed. Reg. at 66794 & n.8 (citing Guide to Supporting Requests to Waive the Time Limit for Able-Bodied Adults without Dependents). That guidance states: In order to be combined, the areas must be contiguous or considered parts of the same economic region. For example, two or more contiguous counties could be grouped together in order to consider their aggregate average unemployment rate. McConnell Decl., Ex. 3, Guide to Supporting Requests to Waive the Time Limit for Able-Bodied Adults without Dependents at 10, ECF No. 26-1. Since USDA did not then begin denying or questioning waiver areas that it viewed as inconsistent with this guidance, unsurprisingly, this guidance did not prevent[] States from strategically using grouping to maximize waived areas. 84 Fed. Reg. at 66794. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 43 of 84 44 West Virginia, although these out-of-state counties are inaccessible by public transportation from the District and although unemployment rates in parts of the District are as high as 11.6%. Zeilinger Decl. \u00b6 11. Another example is New York City, which is part of an LMA including 25 counties in three states \u2014 New York, New Jersey, and Pennsylvania \u2014 that extends more than 100 miles from the City. Banks Decl. \u00b6 22 24. New York City’s current waiver encompasses the boroughs of the Bronx, Brooklyn, and Staten Island, along with four community districts in Manhattan, and three community districts in Queens. Id. \u00b6\u00b6 13 15. About 64,500 ABAWDs who live in these areas, see id. \u00b6 16, would be subject to the work requirement if the unemployment rate is sufficiently low across the tristate LMA, regardless of the barriers to employment within New York City. Indeed, the plaintiffs anticipate that both the District and New York City would lose existing waivers under the Final Rule, given the relatively low unemployment rates in the LMAs as a whole. See Bolen Decl. \u00b6 29; Banks Decl. \u00b6 24; State Pls.’ Mot., Laura Zeilinger Decl. ( Zeilinger Decl. ) \u00b6\u00b6 8, 11 12, ECF No. 3-19. The Final Rule alludes to the fact that commenters raised examples like the District and New York City, see 84 Fed. Reg. at 66794 (acknowledging that [c]ommenters gave examples in which some LMAs are too big to properly define commuting patterns for ABAWDs ), but USDA brushed off those examples, stating that the agency was not compelled by the commenters’ suggestions . . . that LMAs do not account for specific ABAWD commuting patterns and other factors specific to ABAWDs. Id. at 66793. Rejecting alternatives to LMAs proposed by commenters, USDA concluded that LMAs remain the best available and most appropriate delineation to address the issue of grouping, as there are no Federally-designated areas that specifically assess commuting patterns and other related economic factors for ABAWDs. Id. Faced with evidence that, under the LMA definition, ABAWDs, especially Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 44 of 84 45 those in large urban areas, would be subject to the work requirement despite lacking access to sufficient jobs, USDA did no more than state that that this evidence was rejected. Nodding to concerns raised by commenters only to dismiss them in a conclusory manner is not a hallmark of reasoned decisionmaking. Gresham, 950 F.3d at 103 (citing Am. Wild Horse Pres. Campaign, 873 F.3d at 932 and then citing Getty v. Fed. Savs. & Loan Ins. Corp., 805 F.2d 1050, 1055 (D.C. Cir. 1986)). Moreover, as justified, USDA’s preference for LMAs is arbitrary. Elsewhere in the Final Rule, USDA explicitly recognize[d] that ABAWDs may face barriers to employment not faced by the general population. 84 Fed. Reg. at 66787. The LMA section of the Final Rule implicitly recognizes the same reality and acknowledges that USDA has discretion to adopt an approach that accounts for that reality. USDA note[d] that if in the future a more robust delineation \u2014 meaning, a statistical area measuring commuting patterns and other related economic factors for ABAWDs \u2014 becomes available from a Federal source, USDA would consider adopting that definition of area. Id. at 66793. USDA thus chose to exercise its discretion in a way that admittedly ignored critical factors about ABAWDs in service of two goals \u2014 ending grouping and relying only on federal government data \u2014unsupported by the record before the agency and by the agency’s explanation. As already discussed, no evidence supported USDA’s assertions about state abuse, and nothing required the agency to rely on already available federal data sources. Those reasons do not stick here either. * * * USDA’s conclusory reasoning and summary dismissal of extensive evidence submitted by commenters is particularly troubling in light of the reliance interests involved. Encino Motorcars, LLC, 136 S. Ct. at 2126 (requiring reasoned explanation given the significant Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 45 of 84 46 reliance interests involved ).19 The Final Rule, USDA calculated, would newly subject an estimated 1,087,000 ABAWDs to the time limit, and the vast majority, approximately 688,000 people, would lose their benefits for failure to find work. 84 Fed. Reg. at 66809. These almost 700,000 individuals have depended on SNAP benefits to avoid hunger. The states where these individuals live have depended on SNAP and the concomitant federal funding to ensure that the basic needs of their residents are met. Especially when a change in policy risks disrupting interests as fundamental as access to nutrition, the law demands that the agency take care to explain and justify the change. C. Absent Preliminary Relief, Plaintiffs will Suffer Immediate, Irreparable Harm The plaintiffs have shown that they would suffer irreparable injury if the injunction were not granted. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). The analysis starts with the state plaintiffs, then turns to BFC and the individual plaintiffs. 1. State Plaintiffs The state plaintiffs assert that they will suffer irreparable harm in the form of significant administrative burdens and costs, including staffing and training costs, notification costs, and costs from expanding employment and training programs. See State Pls.’ Mem. at 38 43. The Rule would trigger these burdens by restricting states’ flexibility in using waivers. The Center for Budget and Policy Priorities’ declaration predicts that 65% of currently waived counties and 19 Encino Motorcars is one of several cases addressing the obligations to explain that attach to agency actions departing from longstanding policies [that] may have ‘engendered serious reliance interests.’ 136 S. Ct. at 2126 (quoting Fox Television., 556 U.S. at 515). Some read these cases as imposing requirements on agencies beyond those imposed where reliance interests are not found, see State Pls.’ Mem. 35 38 (arguing that a heightened standard applies in this case), but a heightened standard has not been applied here. Instead, simply put, USDA failed to articulate a satisfactory explanation for its choice under the typical arbitrary and capricious standard. State Farm, 463 U.S. at 43. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 46 of 84 47 92% of currently waived towns will lose their waivers. Bolen Decl. \u00b6 5. State plaintiffs predict that areas of each of their states will lose existing waivers as a result of the Final Rule.20 The District, for example, anticipates losing the statewide waiver held since PRWORA became effective in 1997. See Zeilinger Decl. \u00b6 10. New York state estimates that as a result of the Final Rule, only one county in the State consisting of seven ABAWDs, will qualify for a waiver. Jeffrey Gaskell Decl. ( Gaskell Decl. ), \u00b6 18 ECF No. 3-8. Currently, 113,445 New York ABAWDs live in waived areas. Id. Across the plaintiff states, and indeed the country, loss of waivers will mean applying the work requirements to hundreds of thousands of additional ABAWDs, even where the lack of sufficient jobs for this group may persist and the states, though scrambling now, currently lack the infrastructure necessary to provide alternative mechanisms to meet the work requirements, such as employment and training programs, or process status exemptions. As a threshold matter, USDA claims that the costs of compliance with a regulatory scheme do not constitute irreparable injury. USDA’s Opp’n at 58 (quoting Nat’l Med. Care, Inc. v. Shalala, No. 95-0860 (WBB), 1995 WL 465650, at *3 (D.D.C. June 6, 1995)).21 20 Banks Decl. \u00b6 24 (predicting that New York City will lose its waiver); Tikki Brown Decl. ( Brown Decl. ) \u00b6 5, ECF No. 3-3 (anticipating that only 3 of Minnesota’s 26 currently waived counties will continue to qualify for a waiver); Buhrig Decl. \u00b6 8 (stating that only two of Pennsylvania’s 60 currently waived counties will qualify under the Final Rule); Fern\u00e1ndez Decl. \u00b6 28 (stating that 34 counties in California will likely lose their waivers); Steve Fisher Decl. ( Fisher Decl. ) \u00b6 7, ECF No. 3-6 (stating that three Nevada counties will lose their waivers); Holly Freishtat Decl. ( Freishtat Decl. ) \u00b6 10, ECF No. 3-7 (stating that the Final Rule effectively disqualifies the Baltimore Region from qualifying for an area waiver ); Deirdre Gifford Decl. ( Gifford Decl. ) \u00b6 14, ECF No. 3-9 (calculating that five Connecticut cities will lose their waivers); Daniel Haun Decl. ( Haun Decl. ) \u00b6 13, ECF No. 3- 11 (stating that only 6 counties in Oregon may be eligible for a waiver, while 31 counties currently have waivers); Brittany Mangini Decl. ( Mangini Decl. ) \u00b6 7, ECF No. 3-14 (stating that Massachusetts currently has 83 waived towns and cities and none would be eligible for waivers because none are located in Labor Market Areas that meet the six percent floor ); Elisa Neira Decl. ( Neira Decl. ) \u00b6\u00b6 8 9, ECF No. 3-16 (stating that New Jersey currently has a waiver in fifteen counties and predicting that thousands will lose their benefits in the state); S. Duke Storen Decl. ( Storen Decl. ) \u00b6 10, ECF No. 3-17 (stating that Virginia has a waiver for 55 localities, but that at most 5 of those would qualify for waivers under the Final Rule); Dawn Sweeny Decl. ( Sweeney Decl. ) \u00b6\u00b6 8,11 (stating that at most 11 counties in Michigan would qualify for waivers under the Final Rule, compared to 77 counties that would have qualified under the 2001 regulation). 21 USDA cites Nat’l Med. Care, Inc. v. Shalala, No. 95-0860 (WBB), 1995 WL 465650, at *3 (D.D.C. June 6, 1995), which relies on an outdated, out-of-circuit case, A.O. Smith Corp v. FTC, 530 F.2d 515, 527 (3rd Cir. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 47 of 84 48 Although as a general rule[,] . . . economic harm does not constitute irreparable injury, Davis, 571 F.3d at 1295, economic loss caused by federal agency action is an exception: typical economic harm is not irreparable because it is generally recoverable as monetary damages, see id. (citing Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1507 (D.C. Cir. 1995)), whereas economic injury caused by federal agency action is unrecoverable because the APA’s waiver of sovereign immunity does not extend to damages claims, see 5 U.S.C. 702 (allowing relief other than money damages ); see California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018) (stating that economic harm caused by federal agency action is irreparable . . . because the states will not be able to recover monetary damages ); Chamber of Commerce v. Edmondson, 594 F.3d 742, 770 71 (10th Cir. 2010) ( Imposition of monetary damages that cannot later be recovered for reasons such as sovereign immunity constitutes irreparable injury. ); Iowa Utilities Bd. v. FCC, 109 F.3d 418, 426 (8th Cir. 1996) ( The threat of unrecoverable economic loss, however, does qualify as irreparable harm. ); Pennsylvania v. Trump, 930 F.3d at 574 ( Because the States cannot collect money damages under the APA, the States will suffer irreparable harm if the Rules are enforced. (citations and footnote omitted)).22 USDA presses that, even if the court considers these costs, they cannot constitute irreparable harm because the training harms are self-inflicted and the other harms are neither 1976). See Am. Hosp. v. Harris, 625 F. 2d 1328, 1331 (7th Cir. 1980) (relying on A.O. Smith as well). Most problematic for USDA is the fact that the Third Circuit recently rejected the principal USDA advances, holding in no uncertain terms that financial consequences resulting from federal regulation are irreparable harm. Pennsylvania v. Trump, 930 F.3d 543, 574 (3d Cir. 2019), cert. granted sub nom. Little Sisters of Poor v. Pennsylvania, No. 19-431, 2020 WL 254158 (U.S. Jan. 17, 2020), and cert. granted sub nom. Trump v. Pennsylvania, No. 19-454, 2020 WL 254168 (U.S. Jan. 17, 2020). 22 The D.C. Circuit has not squarely addressed the irreparability of economic losses caused by federal agency action but has repeatedly affirmed that economic injury is irreparable where no ‘adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation.’ Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544, 555 (D.C. Cir. 2015) (quoting Wis. Gas Co., 758 F. 2d at 674)). Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 48 of 84 49 ‘certain’ nor ‘great.’ USDA’s Opp’n at 58 (quoting Wis. Gas Co., 758 F.2d at 674). These characterizations are inaccurate. To begin, the state plaintiffs claim that implementing the Rule will require allocating resources to train new or existing staff to implement the ABAWD time limits in previously waived areas. See Brown Decl. \u00b6 10 (asserting that staff time and training will cost Minnesota at least $500,000); Fern\u00e1ndez Decl. \u00b6\u00b6 49 50 (averring that the Rule will require California to provide extensive training to our forty counties on a very tight timeline and describing the extensive training previously provided to the six counties in California currently implementing the time limit ); Gifford Decl. \u00b6 21 (stating that all eligibility staff [in Connecticut] will need to be retrained in ABAWD case administration, given that the new rule greatly expands the number of statewide ABAWD cases ); Haun Decl. \u00b6\u00b6 18 19 (declaring that [t]en (10) months of onboarding activities will be necessary in a matter of three months . . . to ensure those areas [of Oregon] are ready to serve ABAWDs ); Storen Decl. \u00b6 23 (explaining that Virginia will need to train staff from 55 local departments of social services who now need to implement this policy ); Zeilinger Decl. \u00b6 13 (anticipating hiring new staff because the District does not currently administer the work requirements). USDA argues that this harm is self-inflicted because states have always been required to track whether ABAWDs subject to the time limit are or are not meeting the work requirements, even in waived areas. USDA’s Opp’n at 59 (quoting McConnell Decl., Ex. 30, FNS, Memorandum to All Regional Directors of SNAP (May 25, 2018) ( 2018 FNS Memo ) at 3). True, USDA had advised states, at least since 2018, to measure the 3-year period and track ABAWDs on a continuous basis. 2018 FNS Memo at 3. In USDA’s own words, however, that was so that [the state] will be ready to transition off-of [sic] the waiver when it expires and Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 49 of 84 50 reintroduce the time limit, 2018 FNS Memo at 3. States with no reason to anticipate the demise of a waiver under the 2001 regulation would have no reason to implement the time limits in waived areas. Indeed, to have done so, as the states put it, would have been a misuse of government resources. State Pls.’ Reply at 27. In other words, states were not previously subject to a blanket requirement to track in waived areas, so the complained-of training costs would directly result from the regulatory changes announced in the Rule, Wis. Gas Co., 758 F.2d at 674, not from state neglect[], USDA’s Opp’n at 58. In any event, the case cited by USDA for the idea that self-inflicted harm cannot be irreparable is not talking about the kind of harm USDA calls self-inflicted. See USDA’s Opp’n at 58 59 (relying on Barton v. DC, 131 F. Supp. 2d 236, 247 (D.D.C. 2001)). Rather, self- inflicted generally means curable by the moving party without an injunction. So, in Barton, a business owner could not make the requisite showing of harm threatening the business’s existence because the business owner had ways to avoid destruction of the business short of an injunction. Barton, 131 F. Supp. 2d at 247.23 This conception of self-inflicted irreparable harm is echoed in standing doctrine, where plaintiffs cannot manufacture standing merely by inflicting harm on themselves. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013); see also California, 911 F.3d at 573 74 (analyzing the argument that states’ asserted harms stemming from a federal administrative action were self-inflicted by the states as a standing issue); Texas v. United States, 809 F.3d 134, 159 (5th Cir. 2015) (same). Here, USDA has not 23 Similarly, in San Francisco Real Estate Investors v. Real Estate Investment Trust, 692 F.2d 814 (1st Cir. 1982), relied on by Barton, the injury asserted by plaintiff’s motion for preliminary injunction was market uncertainty stemming from the plaintiff’s filing of the lawsuit. Id. at 818; see also Fish v. Kobach, 840 F.3d 710, 753 (10th Cir. 2016) ( [T]ypically, a finding of self-inflicted harm results from either misconduct or something akin to entering a freely negotiated contractual arrangement. ). Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 50 of 84 51 alleged that states administered their SNAP programs to manufacture injuries, nor has the USDA contended that the states could now avoid the training costs absent equitable relief.24 Next, the state plaintiffs assert that implementing the time limits in previously waived areas requires states to give notice to ABAWDs about the time limits, the work requirements, the available exemptions, and about any loss of benefits. Developing these notices, which must comport with complex legal requirements, see, e.g., 7 C.F.R. 273.13 (Notice of Adverse Action), is burdensome, especially for states like the District that do not currently administer the time limits, see Zeilinger Decl. \u00b6 13 ( The District would also need to develop and disseminate notices to impacted and potentially impacted households advising of their ABAWD status, rights and responsibilities with respect to the new work requirements, reporting obligations, and advanced notice of any adverse actions taken on their SNAP cases as a result of the Final Rule’s implementation. ). Even states that have notices drawn up for use in areas currently subject to the time limits, aver that significant amendments to those sample notices will be required to address issues specific to the expedited timeframe for implementation and the anticipated elimination of the State’s carryover of discretionary exemptions. Fern\u00e1ndez Decl. \u00b6 52 (California). Once the notices are drafted, states will need to assess which of the thousands of ABAWDs in the state need notice and will need to execute the mailings. Gifford Decl. \u00b6 20 (Connecticut); see also Brown Decl. \u00b6 10 ( Eligibility workers [in Minnesota] will have limited time to reassess affected cases and send proper 10-day notices to ABAWDs whose SNAP benefits must stop after implementation of the Rule. ); Mangini Decl. \u00b6 10 (describing the case 24 To the extent USDA argues that the states’ proof does not establish that the training costs are certain, see USDA’s Opp’n at 59 61 (quoting Wis. Gas Co., 758 F.2d at 674), the declarations establish with the requisite certainty that implementation of the Rule will cause them to incur the staffing and training costs already described. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 51 of 84 52 review process to identify SNAP recipients who may become newly subject to ABAWD work requirements under the Rule in Massachusetts); Gaskell Decl. \u00b6 19 (noting that districts in New York state are review[ing] their current caseload to identify individuals who will be subject to the ABAWD requirements through a labor intensive, manual process that requires running caseload reports and manually reviewing each case record and sending manual notices ). In some states, completing this notice process will entail reprogram[ming] computer systems that track SNAP recipients. Neira Decl. \u00b6 10 (New Jersey); see also Fern\u00e1ndez Decl. \u00b6 52 (declaring that California’s three eligibility Information Technology (IT) systems, particularly noticing and client reporting mechanisms, will have to be newly implemented or updated and prioritized over existing high priority projects. ); Gifford Decl. \u00b6 20 (stating that Connecticut will need to make system coding changes to execute the mailings ). States estimate that the total monetary costs of noticing ABAWDs will be in the hundreds of thousands of dollars. See id. (predicting that Connecticut’s [a]dministrative costs will include a minimum of $207,500 just for the costs of direct communications to all ABAWDs, plus costs to develop notices and make system coding changes to execute the mailings); Zeilinger \u00b6 13 (averring that the District will incur hundreds of thousands of dollars in additional costs each year that would detract from other elements of the District’s SNAP and potentially other programs ); Buhrig Decl. \u00b6 13 (estimating that Pennsylvania’s total cost, for both notice and administration, will be $2,250,000, plus a one-time cost of $56,050 ). At the hearing, the state plaintiffs also emphasized that they were preparing to add staff to supply denial hearings to beneficiaries who challenge the termination of their benefits. Rough Hr’g Tr. at 33:14 15; see also id. at 56:24 57:1 (explaining that people that lose benefits are entitled to administrative hearings under the Due Process Clause ). For example, Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 52 of 84 53 Connecticut, like other states, anticipate[s] a significant rise in the number of hearings requested, and plans to hire additional hearing officers, who, in that state, have an average annual salary of approximately $131,500. Gifford Decl. \u00b6 20; see also Buhrig Decl. \u00b6 18 ( An increase in appeals for case closures will add additional administrative costs. ); Fern\u00e1ndez Decl. \u00b6 72 (stating that the Final Rule will create a substantial burden on [California’s State Hearings Division] and will lead to delays in hearings, which violate the rules of SNAP and the many other programs for which SHD provides administrative review ); cf. Sweeney Decl. \u00b6 17 (expressing concern[] about the substantial resources that would be needed to defend against legal challenges from ABAWDs who lose access to SNAP benefits ). USDA argues that these allegations of harm are too conclusory to be certain, USDA’s Opp’n at 59, but USDA’s position is belied by the Final Rule itself. There, USDA acknowledged and quantified this very burden. USDA estimated that noticing the 688,000 ABAWDs expected to lose their benefits would take 45,867 hours and that [t]he total start up burden for State agencies will result in 84,463 burden hours. 84 Fed. Reg. at 66809. So, USDA has actually done much of the legwork in establishing, at least in broad strokes, the certainty, as well as the magnitude of this harm. Massachusetts v. U.S. Dep’t of Health & Human Servs., 923 F.3d 209, 224 25 (1st Cir. 2019) (relying on Regulatory Impact Analysis done by agency to establish plaintiffs’ injury for purposes of standing analysis). The states’ descriptions of the steps required to provide notice to ABAWDs in formerly waived areas fill in the concrete details. Undeterred by its past findings, USDA’s next objection is that the regulatory burdens are not great. USDA’s Opp’n at 60 61 (quoting Wis. Gas Co., 758 F.2d at 354). The state plaintiffs counter that economic harm under these circumstances need not be ‘great’ to meet the irreparable injury standard, State Pls.’ Reply at 24, and that they need only show that Plaintiffs Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 53 of 84 54 will suffer (and indeed already are suffering) economic harm that is certain and unrecoverable, id. at 25.25 The question of the proper standard is ultimately academic, though, because the state plaintiffs have shown that their anticipated injuries are significant. Changes of this scope to a complex program serving about forty million people nationwide are self-evidently onerous to implement. As the state declarations describe, rewriting legal notices, combing through thousands of ABAWD files, mass mailing thousands of citizens, and training staff and building technological infrastructure to do all of that is a massive undertaking, especially on a very short time frame of less than three months. USDA argues that state-by-state cost estimates, supported by evidence like financial statements or budget projections, are the only way to substantiate the states’ claims of significant loss. USDA’s Opp’n at 59 60. No such proof requirement has ever been adopted in this Circuit, however. As support for such a requirement, USDA leans on CAPPS, see id. at 57 61, where plaintiffs seeking a preliminary injunction of part of an agency rule could not 25 In arguing this, state plaintiffs misread Open Communities Alliance v. Carson, 286 F. Supp. 3d 148 (D.D.C. 2017) (Howell, C.J.). See State Pls.’ Reply at 25. Open Communities Alliance did not deem a great harm requirement inapplicable to claims of unrecoverable economic harm. See id. (reading the case this way). Rather, Open Communities Alliance deemed inapplicable to unrecoverable economic harm Wisconsin Gas’s existential harm requirement. 286 F. Supp. 3d at 178 (quoting Wis. Gas Co., 758 F. 2d at 674). Wisconsin Gas held that monetary harm, to be irreparable, must threaten the very existence of the movant’s business. Wis. Gas Co., 758 F. 2d at 674. Not even USDA argues here that the states must show an existential budgetary threat. To elaborate on this point, some courts have held that any unrecoverable economic loss is irreparable per se, no matter the magnitude. Feinerman v. Bernardi, 558 F. Supp. 2d 36, 51 (D.D.C. 2008) (citing United States v. State of N.Y., 708 F.2d 92, 93 94 (2d Cir.1983)); see also California, 922 F.3d at 571 (noting that, in the Ninth Circuit, [t]here is also no requirement that the economic harm be of a certain magnitude ). More typically, however, some form of a significance test has been imposed in this district on claims of irreparable harm from irrecoverable financial loss. See, e.g., Cal. Ass’n of Private Postsecondary Sch. v. DeVos (CAPPS), 344 F. Supp. 3d 158, 170 (D.D.C. 2018) ( But it proves too much to suggest that ‘irreparable’ injury exists, as a matter of course, whenever a regulated party seeks preliminarily to enjoin the implementation of a new regulatory burden. See Air Transport Ass’n of Am., Inc. v. Export-Import Bank, 840 F. Supp. 2d 327, 335 36 (D.D.C. 2012). Rather, an asserted ‘economic harm’ must ‘be significant, even where it is irretrievable because a defendant has sovereign immunity.’ Id. at 335. ); ViroPharma, Inc. v. Hamburg, 898 F. Supp. 2d 1, 26 (D.D.C. 2012) (stating that it remains incumbent on plaintiffs claiming unrecoverable losses to demonstrate, first, that they are threatened with serious injury. (emphasis omitted) (citing N. Air Cargo v. USPS, 756 F. Supp. 2d 116, 125 n.6 (D.D.C. 2010) and then citing Gulf Oil Corp. v. Dep’t of Energy, 514 F. Supp. 1019, 1026 (D.D.C. 1981)); Gulf Oil Corp., 514 F. Supp. at 1026 (requiring the injury to be more than simply irretrievable; it must also be serious in terms of its effect on the plaintiff ). Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 54 of 84 55 demonstrate irreparable harm using five declarations that all recite[d] the same boilerplate conclusion that implementing the rule would be burdensome and disruptive. CAPPS, 344 F. Supp. 3d at 171. The declarations sa[id] nothing about the extent of th[e] cost or about when it would be incurred. Id. By contrast, here, the states’ declarations, albeit in varying degrees of detail, are concrete and specific, not boilerplate and identical. Further, the states provide representative estimates of the monetary costs of implementing the Rule. That is enough proof. Finally, USDA objects that [t]he few proffered estimates demonstrate that the states’ injuries are insufficient ‘in proportion to the plaintiffs’ operations,’ as quantified by the total state budgets. USDA’s Opp’n at 61 (quoting Gulf Oil, 514 F. Supp. at 1025). Discerning whether an unrecoverable injury is irreparable is not a mathematical judgment, but, even if it were, USDA’s proportion argument uses the wrong denominator. The proper reference point would be the budget for the relevant state agency or program, as [s]tates cannot simply . . . move money from one agency or program to another. State Pls.’ Reply at 25 n.8. The states have shown that their SNAP costs are likely to increase exponentially. Adding to the states’ burdens in retraining staff and noticing ABAWDs, discussed above, are the state declarations’ averments that states’ current SNAP Employment & Training (E&T) programs could not accommodate demand from the thousands of ABAWDs who will be subject to the work requirements. See Buhrig Decl. \u00b6 16 (Pennsylvania); Fisher Decl. \u00b6\u00b6 9 10 (Nevada); Gifford Decl. \u00b6 24 (Connecticut); Dawn Sweeney Decl. ( Sweeney Decl. ) \u00b6 15, ECF No. 3-18 (Michigan); Zeilinger Decl. \u00b6 15 (the District). This demand could increase tenfold three months after the effective date for implementation of the time limits, when ABAWDs unable to find employment will lose their benefits. See Gifford Decl. \u00b6 24 (anticipating that demand in Connecticut will increase tenfold). Connecticut estimates that right-sizing their E&T programs Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 55 of 84 56 would cost $1 to 2 million annually, just for the staff, see id., and Pennsylvania predicts that increasing capacity to meet demand would cost $21 million over six years, Buhrig Decl. \u00b6 16. Federal cost sharing would be inadequate to cover the needed expansions of state E&T programs. See id.; Sweeney Decl. \u00b6 15; Zeilinger Decl. \u00b6 15. Based on these attested-to estimates of additional E&T costs, the burdens of training new and existing staff, and the burdens associated with noticing ABAWDs, the state plaintiffs have shown that absent an injunction or stay they will suffer immediate, irreparable injury in the form of significant regulatory and administrative burdens. As a result, state plaintiffs’ other complained-of injuries \u2014 increased Medicaid and other program expenditures triggered by the negative health effects of food insecurity and harm to states’ economies, see State Pls.’ Mem. at 41 43 \u2014 need not be evaluated.26 2. Private Plaintiffs The state plaintiffs’ showing of irreparable harm is enough to support the injunctive relief ordered, without analysis of the irreparable harm claimed by BFC and the two individual 26 The state plaintiffs’ Medicaid argument is premised on the uncontested link between hunger and health. See Heather Heartline-Grafton Decl. ( Hartline-Grafton Decl. ) \u00b6 6, ECF No. 3-10 (declaration from the Food Research & Action Center). Food insecurity contributes to poor physical and mental health outcomes. Id. Inadequate nutrition increases the prevalence of diseases, including obesity, type-2 diabetes, heart disease, stroke, and some cancers. Id. Unsurprisingly, then, SNAP improv[es] health outcomes, as numerous studies have shown. Id. \u00b6 10. The current pandemic of coronavirus disease further highlights the connections between health and the SNAP program. Data from the Bureau of Labor Statistics shows that low-wage workers are far less likely to have access to paid sick leave or paid family leave. Bolen Decl., Ex. A, Comment of Center on Budget and Policy Priorities on Final Rule, at 44. The pandemic has put these already more vulnerable workers at higher risk of losing much-needed income, or even their jobs. Recognizing this, the Families First Coronavirus Response Act, proposed in the House of Representatives, includes special waivers of the work requirements in times of national health emergencies. See H.R. 6201, 116th Cong. 301, 302 (2020). Under the Final Rule’s waiver policy, as it stands now, states have lost the flexibility they would need to obtain waivers of the work requirements in areas smaller than an LMA that may become, for example, a hotspot in the current pandemic or to target quickly any area for a waiver because under the Final Rule states would have to wait for national or regional unemployment rates to catch up with the emergency. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 56 of 84 57 plaintiffs. Nevertheless, these plaintiffs have also established irreparable harm. USDA’s arguments to the contrary are misplaced, as explained below. As a threshold matter, USDA contends that these plaintiffs lack standing to assert their complained-of irreparable injuries. USDA’s Opp’n at 53. In mounting this argument, USDA at times elides Article III’s standing test and equity’s irreparable harm analysis. See e.g., id. at 56 (arguing that the alleged harm to Bread to the City is also insufficient to establish standing and, accordingly, irreparable harm ). Although case-or-controversy considerations ‘obviously shade into those determining whether a complaint states a sound basis for equitable relief,’ City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983) (quoting O’Shea v. Littleton, 414 U.S. 488, 499 (1974)), the concepts of an Article III cognizable injury and an irreparable harm are not coterminous, as will be discussed further later, see In re Navy Chaplaincy, 534 F.3d 756, 762 (D.C. Cir. 2008) (rejecting the idea that establishing irreparable harm establishes standing); Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015) (observing that standing arguments are properly raised in opposition to a motion to for a preliminary injunction under the prong of likelihood of success on the merits). For clarity, USDA’s standing and irreparable harm arguments will be disentangled and addressed separately.27 a. Bread for the City BFC is a front-line agency serving [District] residents experiencing poverty. George Jones Decl. ( Jones Decl. ) \u00b6 4, Bread for the City, No. 20-cv-127, ECF No. 4-6. The organization’s mission is to help th[o]se residents develop the power to determine the future of 27 Although plaintiffs here filed their complaint and moved for a preliminary injunction contemporaneously, Food & Water Watch indicates that the standard applicable to evaluating USDA’s standing arguments for purposes of resolving the motion for a preliminary injunction is the summary judgment standard, not the motion to dismiss standard. 808 F.3d at 912 13 (stating that an inability to establish a substantial likelihood of standing requires denial of the motion for preliminary injunction and that the correct approach for determining whether or not to grant the motion for a preliminary injunction is the summary judgment standard). Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 57 of 84 58 their community. Id. BFC, which operates two centers in the District providing food, clothing, medical care, legal services, and social services, reaches 31,000 individuals annually. Id. Among these individuals are 16,000 unique households of 26,000 individuals who collected nutritious groceries from one of BFC’s two food pantries. Id. \u00b6 8 (discussing fiscal year 2019). Many of BFC’s clients have received or currently receive SNAP benefits. Id. Indeed, about 110,000 District residents, including 14,500 ABAWDs, received SNAP benefits in fiscal year 2019. See id. \u00b6 7; Zeilinger Decl. \u00b6 8. As a result of the Final Rule, the District expects to lose its waiver, see Jones Decl. \u00b6 7; Zeilinger Decl. \u00b6 10, and the District estimates that the loss of the waiver will cause 80% to 90% of the ABAWD recipients \u2014 between 11,6000 and 13,050 individuals \u2014 to lose their SNAP benefits, see Jones Decl. \u00b6 7; Zeilinger Decl. \u00b6 8. BFC claims that a chain of events set off by the Rule will cause BFC irreparable harm: when District ABAWDs’ SNAP benefits are terminated, those individuals will turn to BFC’s food assistance program, increasing demand and forcing BFC to divert resources to its food assistance program and to helping ABAWDs navigate the new time limits and away from other social service programs and from legislative advocacy and community organizing. See Jones Decl. \u00b6\u00b6 9 14. USDA’s argument that this alleged harm is insufficient to establish standing, USDA’s Opp’n at 56, focuses on the requirement that an organizational plaintiff show a concrete and demonstrable injury to [its] activities, Food & Water Watch, 808 F.3d at 919 (alteration in original) (quoting PETA v. USDA, 797 F.3d 1087, 1093 (D.C. Cir. 2015)). BFC has satisfied that requirement at this stage of the litigation by showing that implementation of the Rule would inhibit[] its daily operations and that it will use[] its resources to counteract that harm. Id. (quoting PETA, 797 F.3d at 1094). In PETA, for example, PETA had standing to challenge Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 58 of 84 59 inaction by USDA because USDA’s failure to regulate had forced PETA to expend resources seeking regulation from states and stepping in to address gaps in regulation. See PETA, 797 F.3d at 1095 96. Similarly, here, BFC alleges that it will be required to step in to make up the gaps in benefits caused by USDA’s Rule and that this compensation will demand organizational resources. See Jones Decl. \u00b6\u00b6 9 14. The case USDA relies on, Cigar Ass’n of Am. v. FDA, 323 F.R.D. 54 (D.D.C. 2017), is not to the contrary. There, proposed organizational intervenors lacked standing to defend FDA regulations imposing warning requirements on tobacco products. Id. at 57. The intervenors alleged that vacatur of the regulations would increase demand for their services, but those services were educational, id. at 61 63, and an organization does not suffer an injury in fact where it ‘expend[s] resources to educate its members and others.’ Food & Water Watch, 808 F.3d at 920 (quoting Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1434 (D.C. Cir. 1995)). Such an injury is too abstract or ideological to constitute injury in fact, unless it comes with proof of an attendant increase in operational costs. Nat’l Taxpayers Union, 68 F.3d at 1433 34. No intervenor showed that it would incur abnormal operational costs. Cigar Ass’n, 323 F.R.D. at 63. In contrast, BFC alleges that implementation of the Final Rule would compel the expenditure of additional resources on non-educational services, including food assistance and medical and social work. See Jones Decl. \u00b6\u00b6 9, 11, 13. To the extent BFC alleges that it will need to do additional education of and outreach to its clients, BFC has established that these efforts will lead to operational costs beyond those normally expended. Food & Water Watch, 808 F.3d at 920 (quoting Nat’l Taxpayers Union, 68 F.3d at 1434); see Jones Decl. \u00b6 11 (alleging that Bread will need to engage in new outreach efforts to educate District residents about the Rule and that BFC will need to dedicate more staff time to Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 59 of 84 60 conducting outreach within and outside of Bread ); id. \u00b6 12 ( Bread for the City will need to allocate more resources away from existing projects to the provision of legal and\/or social services to address the increased difficulty of applying for and maintaining SNAP). BFC has also shown irreparable harm because the Rule will perceptibly impair[] BFC’s programs, League of Women Voters v. Newby, 838 F.3d 1, 8 (D.C. Cir. 2016) (quoting Fair Emp’t Council of Greater Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1276 (D.C. Cir. 1994)), and the Rule directly conflict[s] with BFC’s mission, id. (quoting Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996)). Implementation of the Rule will cause BFC to expend its limited resources meeting demand for food assistance and helping ABAWDs navigate the new requirements. See Jones Decl. \u00b6\u00b6 9, 11 13. BFC alleges that this resource diversion will necessarily impair other BFC programs advancing its mission, see id. \u00b6 9, including its systemic advocacy and fundraising efforts, id. \u00b6 14 (describing those efforts in detail). Finally, the resource diversion will impair BFC’s efforts to hire additional staff to fill 13 open positions, and understaffing negatively impacts [BFC’s] ability to fulfill its mission. Id. \u00b6 10. These harms from the forced diversion of resources are similar to those recognized as irreparable harm in other suits. See, e.g., Open Communities Alliance, 286 F. Supp. 3d at 178 (finding irreparable harm because plaintiff had changed its activities and diverted scarce resources away from previously planned projects as a result of agency inaction); League of Women Voters, 838 F.3d at 8 (citing Fair Emp’t Council of Greater Wash., Inc., 28 F.3d at 1276 and Nat’l Treasury Emps. Union v. United States, 101 F.3d at 1430) (finding irreparable harm where organization’s key project of voter registration drives would be impaired); see also E. Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094, 1116 (N.D. Cal. 2018) ( Organizations Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 60 of 84 61 ‘have established a likelihood of irreparable harm’ based on their showing of serious ‘ongoing harms to their organizational missions,’ including diversion of resources and the non-speculative loss of substantial funding from other sources. (quoting Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013)). In sum, BFC has demonstrated irreparable harm from the waiver aspects of the Final Rule. b. Individual Plaintiffs Smith and Tann both currently receive $194 monthly in SNAP benefits. Smith Decl. \u00b6 21; Tann Decl. \u00b6 21. Smith, who is 45 years-old, ha[s] been chronically homeless for many years, but . . . currently ha[s] a housing voucher from the District enabling him to rent an apartment with a rent obligation of $0 a month. Id. \u00b6 4. Smith, who graduated from high school and completed a year of college, ha[s] significant skills and experience working construction, and has occasionally worked short-term construction jobs recently, when able to get them. Id. \u00b6\u00b6 5, 9, 12. [S]erious mobility issues related to a major accident in 2006, however, prevent Smith from taking regular employment in construction. Id. \u00b6\u00b6 11 12. To make ends meet, Smith sells newspapers with Street Sense Media, a nonprofit that publishes a biweekly newspaper about poverty and homelessness that is sold in public spaces by people experiencing homelessness or poverty. Id. \u00b6 8. On a good day, this work yields about $20 in donations. Id. Smith identifies other obstacles to his finding steady employment, in addition to his mobility issues: He ha[s] not had a valid driver’s license since the early 2000s, and obtaining one would require paying nearly $1,000 in unpaid traffic tickets, which he cannot afford. Id. \u00b6 15. Smith is thus restricted to jobs that are accessible by public transportation. Id. Finally, he has been diagnosed with post-traumatic stress disorder, anxiety, and bipolar II depression, Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 61 of 84 62 which make it difficult for [him] to maintain healthy interpersonal relationships with superiors and coworkers. Id. \u00b6 13. Tann, who is 28 years-old, lives with her 95-year-old grandmother in the District. Tann Decl. \u00b6 1, 3. She g[ave] up on . . . having her own apartment to cut expenses because she has significant student loans and very little income. Id. \u00b6 6. Tann attended college for several semesters, but withdrew for financial reasons. Id. \u00b6 4. Although Tann has been actively searching for employment, she has been most[ly] unemployed for the last two years. Id. \u00b6\u00b6 7, 9. During those two years, Tann has been on the roster of a temporary staffing agency in the District, and has done clerical and administrative assistant work at a few placements. See id. \u00b6\u00b6 7 9. In her efforts to find regular employment, Tann says she has encountered several barriers. Id. \u00b6 10. First, Tann ha[s] been diagnosed with anxiety, depression, and ADHD, which interfere with her motivation and ability to focus. Id. \u00b6 11. Second, she do[es] not have a car, and therefore can only work in jobs accessible by public transit. Id. \u00b6 12. For example, Tann has worked as a bartender in the past, but finds it impossible to bartend or work as a server now because of the hours \u2014 the [District’s] Metro closes earlier than bars and restaurants close. Id. \u00b6 12. Third, Tann pled guilty to two misdemeanors in Virginia in 2018, for which she was sentenced to 24 months of probation. Id. \u00b6 14. These convictions have caused companies to rescind[] . . . offer[s] of employment after conducting a criminal background check. Id. \u00b6 16. In addition, her frequent court-mandated appointments during business hours have made it hard for her to maintain jobs. Id \u00b6 17; id. \u00b6 19 (stating her belief that my frequent absences during work hours contributed to my most recent employer’s decision not to hire me on a permanent basis. ). Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 62 of 84 63 Tann avoided applying for food stamps because of the stigma, but her situation . . . bec[a]me dire in January 2020, and she began receiving SNAP benefits then. Tann Decl. \u00b6 21. Tann recognizes that the benefits provide an invaluable safety net and that without them, she will experience greater food insecurity and financial instability. Id. \u00b6 22. Smith, too, says that he would experience hardship without food stamps because he has gone for periods without them. Smith Decl. \u00b6 22. [W]ithout food stamps, he cannot guarantee that he will be able to eat. Id. Going without food is an irreparable harm. This sort of deprivation of nutrition, and the psychological and physical distress attending that deprivation, are quite likely to impose lingering, if not irreversible effects on the individual plaintiffs. Haskins v. Stanton, 794 F.2d 1273, 1276 (7th Cir. 1986) (finding irreparable harm in a case involving the Food Stamp Act); see also Garnett, 313 F. Supp. 3d at 157 (same). Those effects are ones that back payments cannot erase. Garnett, 313 F. Supp. 3d at 157 (quoting Kildare v. Saenz, 325 F. 3d 1078, 1083 (9th Cir. 2003)). USDA does not contend otherwise. Instead, USDA argues that Smith and Tann lack standing \u2014 or at a minimum, their injury is not yet ripe for adjudication \u2014 because the alleged irreparable injury ‘may not occur at all.’ USDA’s Opp’n at 55 56 (quoting Texas v. United States, 523 U.S. 296, 300 (1998)). Most generally, USDA objects that the allegation that Smith and Tann will continue to be unemployed when their three-month time limits expire is necessarily speculative. Id. at 54. More specifically, USDA asserts that the plaintiffs are likely excepted from the ABAWD requirements, USDA’s Opp’n at 55, because they should be medically certified as physically or mentally unfit for employment, id. at 56 (quoting 7 U.S.C. 2015(o)(3)(B)). Under the applicable federal regulations, individuals can qualify for medical Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 63 of 84 64 certification if they are obviously mentally or physically unfit for employment as determined by a state, or if they provide[] a statement from medical personnel that a state determines appropriate. USDA’s Opp’n at 55 (quoting 7 C.F.R. 273.24(c)(2)(ii) (iii)). As a result, USDA says, any injury is speculative because it is currently unknown whether these Plaintiffs would qualify for a medical certification by the District. Id. The general objection is easily dismissed. Both Smith and Tann have searched for regular employment for years without success, and the barriers and obstacles that have plagued those efforts \u2014 lack of access to transportation, physical and mental conditions, and criminal convictions \u2014 will not disappear. Add to this the structural factors of the District’s labor market that make it difficult for individuals like Smith and Tann to obtain employment or job training. See Zeilinger Decl. \u00b6\u00b6 11 (describing unemployment Wards 5, 7, and 8 of the District); 12 (describing market-related barriers to employment such as the mismatch between the education level of the District’s ABAWDs and the District’s highly skilled job market). In short, there is a ‘substantial risk’ that Smith and Tann will not satisfy the work requirements three months after the effective date of the Final Rule. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quoting Clapper, 568 U.S. at 414 & n.5). As to USDA’s more specific objection that these individual plaintiffs may be exempted from the work requirement, the plaintiffs respond that the need to take [the] affirmative step[] of applying for a certification to avoid the risk of harm is itself an injury that establishes standing. Private Pls.’ Reply at 19 (quoting Meese v. Keene, 481 U.S. 465, 475 (1987)). Even putting that argument aside, USDA’s contention is unconvincing. All the plaintiffs need to do is show that the threat of future loss of benefits is substantial, Susan B. Anthony List, 573 U.S. at 164 (concluding that the threat of future enforcement action was substantial ), rather than Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 64 of 84 65 imaginary or speculative, id. at 165 (quoting Babbitt v. United Farm Workers Nat.’l Union, 442 U.S. 289, 298 (1979)). Smith and Tann have shown that the District is likely to lose its waiver and that they are unlikely to have employment when their three-month clocks run out. They both aver that they do not qualify for social security disability benefits, see Smith Decl. \u00b6 14; Tann Decl. \u00b6 11, and neither claims to be medically unfit to work altogether, although both Smith and Tann attribute their inability to find regular employment to mental and physical conditions, among other factors. Meanwhile, the possibility that Smith and Tann would qualify for medical exemptions is totally speculative, and next-to impossible to evaluate on the current record: as the District confirmed at the hearing, the District has never issued a medical exemption, or made standards for issuing one, as the work requirements have been waived in the District since PRWORA’s effective date. See Hr’g Tr. at 54:18 (state plaintiffs’ counsel confirming this); see also Private Pls.’ Reply at 20 21.28 Future loss of benefits is likely based on the facts in the plaintiffs’ declarations, and the abstract possibility USDA posits does not materially diminish that likelihood such that Smith and Tann are deprived of standing. See Attias v. Carefirst, Inc., 865 F.3d 620, 628 (D.C. Cir. 2017) (explaining, based on Clapper, that a too- speculative future injury is one that depends on a series of contingent events, none of which was alleged to have occurred by the time of the lawsuit ). Similarly, Smith and Tann have offered enough proof indicating that the harm is certain to occur in the near future to show irreparable harm. Wisc. Gas Co., 758 F. 2d at 674. Smith and Tann’s evidence that they have struggled to find work in the past is sufficient to show that 28 For the same reason, USDA has not provided enough to support its single-sentence argument that, if the plaintiffs fail to seek medical certifications, then they would lack standing because their injury would not be traceable to the Final Rule. USDA’s Opp’n at 56 (citing Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41 42 (1976)). USDA ignores the reality that the District has not set up the considerable infrastructure to evaluate applications for medical exemptions under the SNAP program, having relied on its long-standing waiver to avoid these supporting the exemption bureaucracy, for which the federal government pays only partially. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 65 of 84 66 that this difficulty is likely to occur again., id., triggering a loss of benefits after the District loses its waiver. Even taking into account the unquantifiable possibility that Smith and Tann will qualify for medical exemptions, they have shown with enough certainty that they are likely to lose their SNAP benefits as a result of the Rule. D. The Balance of Equities and the Public Interest Weigh in Favor of Preliminary Relief Turning to the final factors, the plaintiffs must demonstrate that the balance of equities and the public interest weigh in favor of preliminary relief. That burden is easily and decisively met. The equities weigh sharply in favor of preliminary relief. USDA’s only harm is that it will be required to keep in place the existing regulation \u2014 which USDA has used for 19 years \u2014 while judicial review of its new regulation runs its course. See USDA’s Opp’n at 63. USDA objects to being require[d] to disburse taxpayer dollars through a State waiver system that the agency believes is subject to abuse and does not implement Congressional intent. Id. That hardship pales in comparison to the injuries asserted by the plaintiffs. As already detailed, absent preliminary relief, the state plaintiffs will suffer irreparable harm in the form of massive costs associated with implementing a sea change in a program that serves over 40 million U.S. residents. Implementation of the Rule would overburden BFC’s programs, forcing it to divert resources from longer-term and high-impact projects. Finally, there is the grave harm to the individual plaintiffs who will have to go without the $194 per month they need to buy food. Nearly 700,000 people across the country face the same hardship as the individual plaintiffs, a reality that factors into evaluation of the public’s interest in preliminary relief. See Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) ( In awarding a preliminary Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 66 of 84 67 injunction, a court must also consider[] . . . the overall public interest. (quoting Winter, 555 U.S. at 26)). USDA claims that the federal government’s harm and the public interest are one and the same, because the government’s interest is the public interest. USDA’s Opp’n at 63 (quoting Pursuing Am.’s Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016)). That assertion is specious here, where state and local governmental entities who represent the public just as the federal government does, are opposing parties. The public does have an interest in the executive branch’s effectuating statutes enacted by Congress. Id. (quoting Maryland v. King, 567 U.S. 1301 (2012) (Roberts, C.J., in chambers)). That public interest articulated by USDA is far outweighed here by the public interest USDA does not acknowledge but the state plaintiffs press: avoiding the implementation of an illegal policy that could result in hundreds of thousands of people going hungry and severely restrict the flexibility states have heretofore exercised to address nutritional needs of residents. See, e.g., Pursuing Am.’s Greatness, 831 F.3d at 511 (concluding that the public’s interest in exercising certain rights outweighed the public interest in enforcing the law articulated by the government); Make the Road N.Y. v. McAleenan, 405 F. Supp. 3d 1, 65 (D.D.C. 2019) (concluding that the interest in administration of laws is outweighed by potential harm to individuals from erroneous application of the law). * * * As to the waiver-related provisions of the Final Rule, the plaintiffs have shown that they are likely to succeed on the merits of their arbitrary and capricious claim, that they will suffer irreparable harm absent preliminary relief, and that the balance of equities and the public interest weigh in favor of the preliminary relief they have requested. Accordingly, the plaintiffs are entitled to a preliminary injunction under Rule 65 and a stay of the pertinent provisions’ effective date under 705 of the APA. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 67 of 84 68 E. The Waiver-Related Provisions of the Final Rule Will be Enjoined Nationwide and the Effective Date of those Provisions Will be Stayed Pending Judicial Review The final dispute is about the scope of relief. The state plaintiffs request a nationwide preliminary injunction or a stay of the relevant effective date until a determination on the merits, see State Pls.’ Mot. at 44, while USDA urges that any relief should be, or even must be, limited to the plaintiffs, USDA’s Opp’n at 63. This dispute arises amid an active debate about the necessity and propriety of nationwide, sometimes called universal, injunctive relief, especially in APA cases. The very same arguments USDA advances here have been urged only recently by the federal government and have taken up space in ensuing district court, court of appeals, and Supreme Court opinions since 2018. That year, federal agencies began opposing the issuance of nationwide injunctive relief against federal policies, essentially as a matter of course.29 Before then, however, the relief plaintiffs request here would have been uncontroversial: federal courts have issued hundreds of injunctions reaching beyond the parties in the lawsuit. As in those cases, nationwide relief is most consistent with governing precedent and is necessary here to afford complete relief. USDA’s arguments to the contrary are not only implausible, they are off-the-wall, or at least they were before agencies started pressing them. USDA claims that injunctions reaching beyond the plaintiffs are inconsistent with Article III and that the APA supplies no basis for a nationwide injunction. USDA’s Opp’n at 64. Article III is not and has never been as feeble as the agency says: longstanding practice confirms that nationwide injunctions are constitutional, 29 In September 2018, the Department of Justice issued litigation guidelines instructing civil litigators defending government programs to oppose the issuance of nationwide injunctive relief. Memorandum from Att’y Gen. Jeff Sessions on Litigation Guidelines for Cases Presenting the Possibility for Nationwide Injunctions to Heads of Civil Litigating Components, U.S. Att’ys (Sept. 13, 2018) at 2, https:\/\/www.justice.gov\/opa\/press- release\/file\/1093881\/download. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 68 of 84 69 and the absence of even a single binding precedent questioning the constitutionality of such relief shows just how radical the agency’s objection is. USDA’s reading of the APA is equally brazen in its ignorance of longstanding practice and precedent. Past practice and precedent are important in themselves. See Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 798 (2014) ( [S]tare decisis is a foundation stone of the rule of law. ). Even more important, though, are what the precedents at issue enable: judicial review of the executive branch. This case illustrates why administrative actions must be subject to court scrutiny. The vast federal bureaucracy wields staggering power over the lives of vulnerable Americans. Agencies like USDA can dictate their access to housing, health care, and food. The APA’s requirements \u2014 designed to protect these individuals from arbitrary terminations of their benefits and all Americans from agency action run amok \u2014 are merely hortatory unless they can be meaningfully enforced by courts. The agency’s theory of judicial power threatens to undermine that enforcement function. This Court will not abdicate at the executive branch’s request. 1. A Nationwide Injunction is the Appropriate Remedy Under Binding D.C. Circuit Precedent Interpreting the APA As USDA conceded at the hearing, this Court is bound by the D.C. Circuit’s precedents, Rough Hr’g Tr. at 90:8, and those precedents hold that ‘[w]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated \u2014 not that their application to the individual petitioners is proscribed.’ Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (alteration in original) (quoting Harmon v. Thornburg, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989)); see also, e.g., Humane Soc’y of U.S. v. Zinke, 865 F.3d 585, 614 (D.C. Cir. 2017) ( A common remedy when we find a rule is invalid is to vacate. ); Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 69 of 84 70 F.3d 89, 97 (D.C. Cir. 2002) ( Normally when an agency so clearly violates the APA we would vacate its action . . . and simply remand for the agency to start again. ). In National Mining, the district court had found that the challenged rule exceeded the agency’s authority and ordered that the . . . rule is declared invalid and set aside, and henceforth is not to be applied or enforced by the relevant agencies. Am. Mining Cong. v. U.S. Army Corps of Eng’rs, 951 F. Supp. 267, 278 (D.D.C. 1997). On appeal, the D.C. Circuit rejected the agencies’ argument that the rule should have been enjoined only as to the plaintiffs, stating unequivocally that vacatur of an unlawful rule is not just one possible form of relief but the ordinary remedy. The other, less ordinary, remedy, not available at a preliminary stage, is remand to the agency without vacatur. See, e.g., Humane Soc’y, 865 F.3d at 614 (discussing both options). The Supreme Court and other circuits have recognized the same principle: that courts invalidate \u2014 without qualification \u2014 unlawful administrative rules as a matter of course, leaving their predecessors in place until the agencies can take further action. Pennsylvania, 930 F.3d at 575; see also Zayn Siddique, Nationwide Injunctions, 117 COLUM. L. REV. 2095, 2121 23 (2017) (criticizing National Mining but reading it to hold this and observing that [c]ourts outside the D.C. Circuit have also adopted the same principle); Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. REV. 1065, 1100 (2018) (describing National Mining). This principle flows directly from the APA’s text: section 706 states that reviewing courts shall set aside unlawful agency actions. 5 U.S.C. 706. Thus, as the Ninth Circuit has observed, the text of the APA’s 706 compel[s] nationwide injunctions of invalid rules. Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 699 (9th Cir. 2007), aff’d in part, rev’d in part sub nom., Summers v. Earth Island Inst., 555 U.S. 488 (2009) (emphasis added); see also E. Bay Sanctuary Covenant v. Trump, No. 18-17274, 2020 WL 962336, at *24 (9th Cir. Feb. 28, 2020) Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 70 of 84 71 ( Singular equitable relief is commonplace in APA cases, and is often necessary to provide the plaintiffs with complete redress. (internal quotation marks omitted)). An often-cited statement of the same principle is Justice Blackmun’s view, in dissent but apparently expressing the view of all nine justices, Nat’l Mining Ass’n, 145 F.3d at 1409, that when a plaintiff prevails on a challenge under the APA to a rule of broad applicability, the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual, Lujan v. Nat’l Wildlife Federation, 497 U.S. 871, 913 (1990) (Blackmun, J., dissenting); see also id. 890 n.2 (majority opinion) (recognizing that a person adversely affected can bring suit to alter a whole agency program). Justice Blackmun contrasted these circumstances, under which a single plaintiff, so long as he is injured by the rule, may obtain ‘programmatic’ relief that affects the rights of parties not before the court, with a case where a generally lawful policy is applied in an illegal manner on a particular occasion and one who is injured is not thereby entitled to challenge other applications of the rule. Id. at 913 (Blackman, J., dissenting); cf. Frost, supra, at 1082 83 ( When a court finds that a statute is unconstitutional on its face, it does not hold that the statute applies to everyone but the plaintiff; rather, it holds that the statute is invalid. ). All of this shows that the APA’s instruction that unlawful agency actions be set aside is ordinarily read as an instruction to vacate, wherever applicable, unlawful agency rules. Similarly, the APA’s 705 must be read to authorize relief from agency action for any person otherwise subject to the action, not just as to plaintiffs. That provision allows the reviewing court to issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings to the extent necessary to prevent irreparable injury. 5 U.S.C. 705. Section 705, which speaks in Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 71 of 84 72 terms of the agency action and that action’s effective date, id., plainly and simply authorizes courts to stay agency rules pending judicial review, Mexichem Specialty Resins, Inc., 787 F.3d at 562 (Kavanaugh, J., dissenting in part); see also In re GTE Service Corp., 762 F.2d 1024, 1026 (D.C. Cir. 1985) (recognizing that 705 supplies statutory authority to stay agency orders pending review in this court. ); see also, e.g., Texas v. EPA, 829 F.3d 405, 435 (5th Cir. 2016) (staying a final rule in its entirety across the country in a case brought by Texas, other state regulators, and private parties). Rather than confront this consensus about the APA head-on, USDA ignores it, arguing that courts’ remedial power under the APA has always been limited by unspecified established principles of equitable discretion. USDA’s Opp’n at 65 (internal quotation marks omitted). The agency does not cite a D.C. Circuit case applying those unspecified principles to narrow injunctive relief under the APA. Nevertheless, the agency insists that those principles require here that the ‘set aside’ language in 706(2) . . . apply only to the Plaintiffs. Id. The contrary consensus, of course, destroys USDA’s argument. The argument also flops on its own terms. 2. A Nationwide Injunction Is Consistent With Established Principles of Equitable Discretion Although USDA is peculiarly coy in not specifying precisely the equitable principles it believes constrain courts’ remedial powers under the APA, the principle USDA seems to have in mind is equity’s rule that injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs. Califano v. Yamasaki, 442 U.S. 682, 702 (1979); see USDA’s Opp’n at 64 (referencing this principle). In Califano, the Supreme Court, addressing a question about nationwide class actions, described that principle of complete relief, stating that nationwide classes were not inconsistent with principles of equity jurisprudence, since the scope of injunctive relief is dictated by the extent of the violation Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 72 of 84 73 established, not by the geographical extent of the plaintiff class. 442 U.S. at 702. Nationwide relief here is necessary to provide complete relief to the plaintiffs for the violation established. Id. That a nationwide remedy is necessary to provide complete relief for promulgation of an unlawful rule follows from the nature of the claim that the rule is facially unlawful. As Judge Ketanji Brown Jackson of this Court explained in her incisive defense of nationwide injunctions: when the plaintiff’s claim is that the agency has breached the plaintiff’s (and the public’s) entitlement to non-arbitrary decisionmaking, to provide the relief that the plaintiff is entitled to receive for establishing that the agency’s rule is arbitrary, the rule must be invalidated, so as to give interested parties (the plaintiff, the agency, and the public) a meaningful opportunity to try again. Make the Road N.Y., 405 F. Supp. 3d at 72. Put differently, when a plaintiff proves that a rule was unlawfully promulgated, halting the rule’s application to the plaintiff may lessen the real-world impact of the unlawful rule on the plaintiff but does not fully redress the violation established \u2014 that is, the promulgation of an unlawful rule. The same reasoning has force in the preliminary injunction context. See, e.g., id. at 67 68 (applying National Mining in granting a preliminary injunction); Doe v. Rumsfeld, 341 F. Supp. 2d 1, 18 19 (D.D.C. 2004) (entering a permanent injunction, after having issued a preliminary injunction, of the Department of Defense’s involuntary anthrax inoculation program as to all persons, not just the plaintiffs and relying on National Mining); see also, e.g., Doe 1 v. Trump, 275 F. Supp. 3d 167, 217 (D.D.C. 2017), vacated sub nom. Doe 2 v. Shanahan, 755 F. App’x 19 (D.C. Cir. 2019) (entering preliminary injunction of policy banning transgender individuals from the military in case filed by current and aspiring military service members without discussing scope of relief); Planned Parenthood Fed’n of Am., Inc., v. Heckler, Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 73 of 84 74 712 F.2d 650, 651 (D.C. Cir. 1983) (affirming preliminary and then final injunction prohibiting enforcement of federal regulations). Nationwide preliminary injunctive relief guarantees that a rule shown likely to be proven unlawful does not become effective, providing complete relief to the plaintiffs while the rule’s legality is finally adjudicated. See Pennsylvania, 930 F.3d at 575 76 (justifying similarly a nationwide preliminary injunction). Nationwide relief at the preliminary stage also ensures that complete relief remains available to the plaintiffs after that final adjudication. Denial of nationwide preliminary relief would allow implementation of the Final Rule in two dozen states. Once that egg has been scrambled, restor[ing] the status quo ante will be considerably more disruptive. Sugar Cane Growers Co-op. of Fla., 289 F.3d at 97. Such disruption is one of the factors that weighs in favor of remand without vacatur after an adjudication of the merits. Id. As a result, denial of nationwide relief at this preliminary stage could make it less likely that the plaintiffs get complete relief \u2014 that is, vacatur \u2014 in the end. See id. (remanding without vacating, despite the seriousness of the violation, because [t]he egg has been scrambled and there is no apparent way to restore the status quo ante ); cf. Nat’l Parks Conservation Ass’n v. Semonite, 925 F.3d 500, 502 (D.C. Cir. 2019)(finding that remedy granted of vacating permit issued in violation of National Environmental Policy Act (NEPA) for construction of electrical transmission towers across the historic James River required remand to consider whether vacatur remains the appropriate remedy, upon discovery that tower construction had been completed the week before we issued our opinion, a troubling situation that could have been avoided if either the district court or this court might have enjoined tower construction ). USDA is thus incorrect to imply that nationwide relief conflicts with the idea that preliminary injunctions are an equitable Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 74 of 84 75 tool designed merely to preserve the ‘relative positions of the parties’ until final judgment. USDA’s Opp’n at 64 (quoting Camenisch, 451 U.S. at 395). USDA insists, citing to a recent Ninth Circuit case, that this Court’s focus should be not on the relief necessary to remedy the legal violation alleged, as National Mining contemplates, but on the relief necessary to redress only the injury shown in the irreparable harm analysis. California, 911 F.3d at 584; see also USDA’s Opp’n at 65 (citing California, 911 F.3d at 583). In California v. U.S. Dep’t Health and Human Services, 281 F. Supp. 3d 806 (N.D. Cal. 2017), the district court enjoined enforcement of two rules nationwide because the agencies did not violate the APA just as to Plaintiffs: no member of the public was permitted to participate in the rulemaking process via advance notice and comment. Id. at 832 (emphasis omitted). The Ninth Circuit affirmed the preliminary injunction only as to the states who were plaintiffs. California, 911 F.3d at 584. Rejecting the district court’s reasoning about the legal wrong alleged, the Ninth Circuit required the scope of the remedy to be no broader and no narrower than necessary to redress the irreparable injury shown by the plaintiff states. Id. District judges, the Ninth Circuit added, must require a showing of nationwide impact or sufficient similarity to the plaintiff states to foreclose litigation in other districts. Id. [W]hile the record before the district court was voluminous on the harm to the plaintiffs, it was not developed as to the economic impact on other states, that Circuit said. Id.; see also E. Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1029 (9th Cir. 2019) (granting motion for stay pending appeal insofar as the [preliminary] injunction entered by the district court applies outside the Ninth Circuit, because the nationwide scope of the injunction is not supported by the record as it stands ); E. Bay Sanctuary Covenant v. Barr, 391 F. Supp. 3d 974 (N.D. Cal. 2019) (restoring the nationwide scope of the injunction on supplementation and reexamination of the record); E. Bay Sanctuary Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 75 of 84 76 Covenant, No. 18-17274, 2020 WL 962336, at *23 (affirming the nationwide injunction entered on the supplemented record); cf. City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 1244 (9th Cir. 2018) (concluding that the district court was correct to enjoin the Administration from enforcing an unconstitutional Executive Order but that the present record is not sufficient to support a nationwide injunction. ). This Court is not in the Ninth Circuit, but were California’s rule to apply, a nationwide injunction would still be necessary here to provide complete relief for the injury shown in the irreparable harm analysis. The record in this case establishes that implementation of the waiver portions of the Final Rule would have nationwide impact and would cause injuries of sufficient similarity to the plaintiff[s’] to other states and individuals throughout the country. California, 911 F.3d at 584. The starkest of those impacts is the hunger that threatens the nearly 700,000 people who will lose their SNAP benefits if the Final Rule is implemented. See 84 Fed. Reg. 66809. These individuals reside in 34 states, plus the Virgin Islands and the District, as those 36 jurisdictions currently have either statewide or partial ABAWD time limit waivers. See USDA, Supplemental Nutrition Assistance Program (SNAP): Status of State Able-Bodied Adult without Dependents (ABAWD) Time Limit Waivers Fiscal Year 2020 First Quarter (Nov. 12, 2019), https:\/\/fns- prod.azureedge.net\/sites\/default\/files\/media\/file\/FY20-Quarter%201-ABAWD-Waiver- Status.pdf. These states, like the plaintiff states, are spread across the country, spanning from Alaska and Oregon to Louisiana and Tennessee to Montana and North and South Dakota to Georgia and West Virginia. Id. Threatened loss of essential benefits by individuals in plaintiff states and other states alike merits nationwide preliminary relief. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 76 of 84 77 In addition, other states with current waivers will experience harms similar to those alleged by state plaintiffs. The state plaintiffs’ declarations all detail similar harms, indicating that other non-plaintiff states facing loss of waivers will likewise suffer. Further, as already stated, the Final Rule itself contemplated uniform types of administrative burdens across states, and USDA was able to quantify those burdens into estimates of hours required to implement the Final Rule across the country. See 84 Fed. Reg. at 66809. Anticipated regulatory burdens affecting plaintiff states and non-plaintiff states alike merit nationwide preliminary relief. Presented with an analogous record of geographically diffuse harm, the Supreme Court blessed nationwide preliminary injunctions for aspects of the executive branch’s ban on entry of travelers from certain Muslim countries in 2017. See Int’l Refugee Assistance Project, 137 S. Ct. at 2088 89 (declining to stay aspects of nationwide preliminary injunctions entered by district courts).30 There, many thousands of people across the country were potentially affected by the policy. See id. at 2083, 2087 88. A diverse array of plaintiffs, including states, individuals, and organizations, filed multiple suits. Id. at 2083 84. Some of these plaintiffs were awarded nationwide preliminary injunctions of the policy. Id. In allowing these injunctions to go forward as to aspects of the policy, the Supreme Court praised the courts below for focusing specifically on the concrete burdens that would fall on the plaintiffs and did not disturb those courts’ preliminary injunctions that covered not just [plaintiffs], but parties similarly situated to them whose rights might be similarly affected. Id. at 2087. The same reasoning applies here: because the burdens that would fall on the plaintiffs upon the Final Rule’s implementation 30 The Supreme Court also recently declined to stay a nationwide temporary restraining order of a rule promulgated by the Attorney General and the Secretary of Homeland Security limiting asylum seekers to certain designated ports of entry. See Trump v. E. Bay Sanctuary Covenant, 139 S. Ct. 782 (2018) (mem.). That said, as discussed later, the Supreme Court’s recent messages on the topic of nationwide injunctions have, admittedly, been mixed. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 77 of 84 78 would also fall on those similarly situated, a nationwide preliminary injunction of the Final Rule is justified. USDA argues that the structure of the State waiver process does not support entry of a nationwide injunction. USDA’s Opp’n at 65. State waivers are approved on a state-by-state basis, USDA says, so any effect of the Rule outside of the state plaintiffs would have no impact on them. Id. That argument misses the point, which is that the record supports a finding that the harms claimed by the plaintiffs \u2014 increased regulatory burdens, restrictions on the flexibility of states to address the needs of residents and loss of essential nutritional benefits \u2014 will be suffered not just in the plaintiff states but in states across the country. In the face of such a finding, to allow a likely unlawful policy to go forward anywhere at all would be judicial malpractice. Courts exist not to condone such harms but to remedy them. At the hearing, USDA pressed a similar point: that the plaintiffs should not be able to speak for non-party states or to ask for a change to the regulatory regime in states that aren’t parties here, pointing out that nine states have shown up as amici saying they want the Final Rule to go into effect. Rough Hr’g Tr. at 90:4 16. This argument lacks a limiting principle. As already discussed, nationwide injunctive relief is sought and granted on the merits in APA cases all the time. If opposition to the relief sought by plaintiffs by others similarly situated could defeat a plaintiffs’ request for nationwide equitable relief at the preliminary stage, why would it not defeat a plaintiffs’ request to vacate an unlawful rule nationwide at the merits stage? Limiting final relief to the plaintiffs in APA cases would be absurd, making a patchwork out of federal law. Even at the preliminary stage, slicing and dicing up the country as USDA suggests would invite chaos. For this reason, the federal government would be expected to prefer nationwide Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 78 of 84 79 relief in a case like this one, as an order staying or enjoining the Final Rule everywhere serves the important interest of uniformity in administration of a federal program. That interest is particularly strong here, where Congress instructed USDA to establish uniform national standards for eligibility for SNAP benefits, 7 U.S.C. 2014(b) ( [T]he Secretary shall establish uniform national standards of eligibility . . . for participation by households in the supplemental nutrition assistance program. ). Subjecting different states and the individuals within those states to different policies about who can and cannot get benefits is not only needlessly complicated, it is fundamentally unfair.31 Piecemeal injunctions make it impossible for ordinary people, who do not think in terms of judicial circuit boundaries and who are unaware which states are party to a suit, to know what law applies to them. Imagine how the chaos and confusion borne of a partial injunction would multiply were multiple courts to get involved. In cases where plaintiffs file suit in multiple federal district courts, a collage of partial injunctions could quickly pop up. In those cases, a single, nationwide injunction or stay may be particularly helpful in temporarily silenc[ing] the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing and smoothing over disparate rulings on the question issued by district courts around the country. In re EPA, 803 F.3d at 808. Paradoxically, critics of nationwide injunctions have argued the opposite: that nationwide injunctions burden the federal government and breed chaos. As already discussed, the harm to the federal government from having to enforce existing law, as it has for the last 25 years, in all 31 Of course, in some cases, slicing and dicing is not only chaotic and unfair, it is impossible and ineffective. For example, enjoining environmental rules about air and water in some states but not in neighboring states would be useless, as pollutants do not respect state boundaries. Make the Rd. N.Y., 405 F. Supp. 3d at 70 (stating that the federal government opposing a nationwide injunction has no good answer to the obvious practical problems that partial invalidation of agency rules\u2014including and especially rules that pertain to food, air, and water\u2014would pose ); see also, e.g., In re EPA, 803 F.3d 804, 808 (6th Cir. 2015), vacated on other grounds, 713 F. App’x 489 (6th Cir. 2018) (staying pending judicial review an EPA rule redefining waters subject to the Clean Water Act). Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 79 of 84 80 50 states is minimal. One critic recently wrote that the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by . . . conflicting decisions. Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (mem.) (Gorsuch, J., concurring in the grant of the stay). Yet the chaos described was a product not of a nationwide injunction, which would quickly settle legal issues at play once and for all potential plaintiffs, but of emergency appeals by the federal government seeking stays of nationwide injunctions entered by district courts. See id. (describing the history of litigation surrounding the regulation at issue, the so-called public charge rule, which was enjoined nationwide in three federal district courts and in several states between two other federal district courts before two circuits stayed two nationwide injunctions and the Supreme Court intervened to stay the third). Such emergency requests have become increasingly common. See, e.g., Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 HARV. L. REV. 123, 134 44 (2019) (reviewing eighteen requests by the federal government to stay nationwide injunctions or to grant certiorari before judgment where nationwide relief had been ordered); see also Wolf v. Cook Cty., 140 S. Ct. 681, 681 (2020) (mem.) (Sotomayor, J., dissenting from the grant of stay) ( Today’s decision follows a now-familiar pattern. The Government seeks emergency relief from this Court, asking it to grant a stay where two lower courts have not. The Government insists \u2014 even though review in a court of appeals is imminent \u2014 that it will suffer irreparable harm if this Court does not grant a stay. ). These requests for relief raise the very same arguments about the impropriety of nationwide injunctions that USDA raises here. Any recent chaos stemming from nationwide injunctions is the product of an executive branch aggressive in pursuit of appeals and in advancing its present arguments in derogation of judicial power. Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 80 of 84 81 Perhaps that sort of power grab is to be expected from the executive branch. What is unexpected, and dangerous to the maintenance of our constitutional order, is that instead of fighting back, some courts have rolled over. In a growing number of cases, the Supreme Court has granted the federal government the relief it seeks. See, e.g., Dep’t of Homeland Sec. 140 S. Ct. at 599; Barr v. E. Bay Sanctuary Covenant, 140 S. Ct. 3 (2019) (mem.); Wolf v. Innovation Law Lab, No. 19A960, 2020 WL 1161432 (U.S. Mar. 11, 2020). Two members of the Supreme Court have even said that nationwide injections raise serious questions about the scope of courts’ equitable powers under Article III. Dep’t of Homeland Sec., 140 S. Ct. at 600; Trump v. Hawaii, 138 S. Ct. 2392, 2428 29 (2018) (Thomas, J., concurring). The Ninth Circuit, citing those two concurrences and reacting to the intense and active controversy surrounding the proper scope of injunctions against agency action, recently stayed outside that Circuit its decision affirming a nationwide injunction. Innovation Law Lab v. Wolf, No. 19-15716, 2020 WL 1046241, at *3 (9th Cir. Mar. 4, 2020). Courts that have rejected federal agencies’ requests to enter limited injunctions have, by and large, in reliance on long-standing precedent and common sense, not taken the time to explain why the arguments underlying those requests are so wrong. This passivity stands in stark contrast to the judicial reaction to legislative attempts to strip judicial power. For example, courts have enforced a strong presumption in favor of judicial review of agency action, setting a high bar for congressional attempts to strip the federal courts of their subject matter jurisdiction to review certain agencies or certain types of agency actions. See, e.g., Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 670 (1986); Sackett v. EPA, 566 U.S. 120, 130 (2012). In cases with constitutional stakes, the courts have been more protective still, fending off congressional attempts to foreclose plaintiffs from seeking judicial Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 81 of 84 82 remedies for constitutional violations. E.g., Webster v. Doe, 486 U.S. 592, 603 (1988) (observing that construing a statute to deny any judicial forum for a colorable constitutional claim would raise serious constitutional question[s] (internal quotation marks omitted)). Allowing the political branches . . . the power to strip courts of the jurisdiction to hear constitutional claims, the Supreme Court has said, would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not th[e] [c]ourt[s], say ‘what the law is.’ Boumediene v. Bush, 553 U.S. 723, 765 (2008) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)) (holding that Congress could not suspend the writ of habeas corpus for certain individuals). Permitting the executive branch to redefine the reach of Article III without putting up a fight would be similarly anomalous. 3. A Nationwide Injunction is Consistent with Article III The agency’s argument that the APA provides no basis for nationwide relief has already been answered. USDA also argues that [e]xtending an injunction to other States that have chosen not to challenge the Rule is inconsistent with Article III. USDA’s Opp’n at 64. Quoting Gill v. Whitford, 138 S. Ct. 1916, 1930 31 (2018), a case about standing to bring suit, the agency claims that any ‘remedy’ ordered by a federal court must ‘be limited to the inadequacy that produced the injury in fact that the plaintiff has established.’ Id. at 64 65. In essence, USDA’s view is that even if the plaintiffs have standing to seek a remedy to address their injuries, the plaintiffs do not have standing to seek a remedy that benefits non-plaintiffs. Indeed, in USDA’s view, to issue an injunction that redresses injuries of non-plaintiffs would exceed this court’s judicial power to decide cases and controversies. U.S. CONST., art. III, 2. The preceding discussion \u2014 of dozens of the countless federal cases ordering relief redressing injuries of non-plaintiffs \u2014 proves the agency’s Article III argument is not just wrong but almost comically so, if the stakes for judicial power were not so dire. Indisputably, a Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 82 of 84 83 plaintiff must show standing to sue, see, e.g., Lujan, 504 U.S. at 560 61, and standing to pursue the type of remedy sought, see Lyons, 461 U.S. at 97 98. After one plaintiff in a suit satisfies those requirements, however, Article III’s demands are exhausted. See Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006) ( [T]he presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement. ); Salazar v. Buono, 559 U.S. 700, 713 (2010) (plurality opinion) (stating that an argument about the scope of the injunction is not an argument about standing but about the merits ); see also, e.g., Spencer E. Amdur & David Hausman, Nationwide Injunctions and Nationwide Harm, 131 HARV. L. REV. F. 49, 54 (2017) ( Article III has never required courts to meticulously ensure that no relief reaches anyone beyond the plaintiff. ). Fashioning equitable relief is not and has never been an exercise in formalistic matching, of formulaically ordering relief scoped precisely to the injury the plaintiff has asserted and proven. As the Supreme Court recently said in allowing an equitable remedy affecting non-parties, [c]rafting a preliminary injunction, indeed any equitable relief, is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents. Int’l Refugee Assistance Project, 137 S. Ct. at 2087. To underscore just how commonplace relief affecting non-plaintiffs is, consider some examples outside the already-covered APA context. See generally Mila Sohoni, The Lost History of The Universal Injunction, 133 HARV. L. REV. 920, 996 (2020) (deploying hundreds of cases to rebut the contention that injunctions reaching beyond the plaintiffs are inherently illegitimate as an Article III matter ). Take an action to abate a public nuisance: if a private plaintiff injured by the nuisance wins an injunction to abate the nuisance, that injunction will undoubtedly remedy injuries not only of the plaintiff but also of non-plaintiffs who did not Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 83 of 84 84 participate in the suit. Class actions are another example. Absent class members do not appear before the court to prove their standing, but any relief ordered benefits those absent class members. Last but definitely not least, federal courts have declared unconstitutional and enjoined enforcement of countless state and federal laws in suits brought by individual plaintiffs but benefiting many similarly situated non-parties. These are constitutionally permissible exercises of federal judicial power, and so is the nationwide relief ordered here. The agency’s objection to the issuance of a nationwide preliminary injunction should be seen for what it is: a bold and bald-faced effort to restrict the exercise of Article III judicial power to aggrandize that of the executive branch. This Court declines the invitation. IV. CONCLUSION For the reasons explained, the state plaintiffs’ motion for a preliminary injunction and a stay pending judicial review is denied as to the discretionary exemption portions of the Final Rule. The state plaintiffs’ and private plaintiffs’ motions for a preliminary injunction and a stay pending judicial review are granted as to the challenged waiver portions of the Final Rule. USDA will be preliminarily enjoined from implementing the challenged waiver portions of the Final Rule. See 84 Fed. Reg. at 66811 (printing parts of the regulation to be codified, including the challenged portions: 237.24 (f)(2) and (f)(4)). The effective date of these aspects of the Final Rule shall be stayed under 5 U.S.C. 705 pending judicial review. An appropriate Order accompanies this Memorandum Opinion. Date: March 13, 2020 __________________________ BERYL A. HOWELL Chief Judge Case 1:20-cv-00119-BAH Document 51 Filed 03\/13\/20 Page 84 of 84 2020-03-13T19:28:22-0400 Beryl A. Howell ”

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” .-:-,\u00b7 :..\ufffd i’ I 1 LEGAL SERVICES OF NORTHERN CALIFORNIA iln JODIB BERGER, State Bar No. 124144 O 2 j 1810 Capitol Street \u00b7 ;I.l c.o Vallejo, CA 94590-5721 \u00b7 25 3 Telephone: (707) 643-0054 x 302 \ufffd :;: Facsimile: (707) 643-0144 J4 \ufffd 4 :J :::> .JAY AREA LEGAL AID \ufffd \ufffd Amy P. Lee, State Bar No. 203604 i Q:. \ufffd Robert Capistrano, State Bar No. 70482 () 1 A 405 14th Street, 11th Floor tJ Oakland, CA 94612 7 Telephone: (510) 663-4744 t’ Facsimile: (510) 663-4740 \ufffd1 \ufffd Additior..a! Counsel Z.ist on ne..-r:t page i\ufffd ENDORSED \u00b7 FILt=O San Franol oo C\ufffduntySuperlor Court DEC – 8 2006 GORDON PARK .. LI, Clerk BY: LINDA K, E PV Depyty5j,r1(\” ho … , INTHESUPERIORCOURT OFTIIBSTATEOFCALIFORNIA -rt\u00b7 … f;j–1\u00b7- -\u00b7\u00b7\u00b7. \u00b7\u00b7\u00b7\u00b7 \u00b7 – \u00b7 \u00b7\u00b7 – — \u00b7 — \u00b7\u00b7 – IN-AND-FQR:-\u00b1-HE-GOUNT\u00a5-Q.F-SAN-FRAN\ufffdISCO -\u00b7- … -\u00b7\u00b7 l.!!2 7 G;j13 BE VU, SUK KIT WONG, and -GURGEN t) HOVHANNISYAN >-14 LLJ v. z1s a:! 16 0 J= 17 <( 18 19' 20. 21 23 24 25 TAMERON :MITCHEll..AND LARRY BOLTON, Chief Deputy Directors, Department of Social Services, State of_ California, and DEPARTMENT OF SOCIAL SERVICES, STATE OF CALIFORNIA Respondents. Case No. CPF-04-504362 SE'ITLEMENT AGREEMENT AND[PBQP08El)JORDER '-<- 1 \\Q\/ Settlement Agreement and \ufffd] Order Vu et al. v. Mitchen et al., Case No. CPF-04-504362 1 NATIONAL CENTER FOR LAW AND ECONO:MlC JUSTICE MARCCOHAN\u00b7 2 MARY R. MANNIX 275 Seventh Ave., Suite 1506 3 New York, NY 10001-6708 Telephone: (212) 633-6967 4 Facsimile: (212) 633-6371 COALffiON OF CALIFORNIA WELFARE RIGHTS ORGANIZATIONS 6 \u00b7 Grace Galligher, State Bar No. 106687 1901 Alhambra Blvd, Second Floor 7 Sacraqiento, CA 95816. Telephone: (916) 736-0616 8 Facsimile: (916) 736-2645 \u00b7 9 Attorneys for Petitioners 10 . --\u00b7\u00b7-\u00b7\u00b7\u00b7 \u00b7\u00b71-1\u00b7- \u00b7-\u00b7 -\u00b7\u00b7\u00b7\u00b7- ' -- \u00b7 12 13 14 15 16 17 18 19 20 21 22 J 23 24 25 ...... - ...... \u00b7\u00b7 \u00b7-\u00b7\u00b7 Settlement Agreemen\ufffd arid EP10\ufffd Order Vu et al. v. Mitchell et al., Case No. CPF-04-504362 \u00b7\u00b7\u00b7\u00b7\u00b7\u00b7\u00b7\u00b7-\u00b7 \u00b7-\u00b7--- --\u00b7-\u00b7\u00b7\u00b7 ....... ,, _____ ,, \u00b7-\u00b7\u00b7\u00b7\u00b7\u00b7\u00b7-\u00b7\u00b7\u00b7 -\u00b7-\u00b7\u00b7-\u00b7 -\u00b7-\u00b7\u00b7- 1 This SE'ITLE:tv.1ENTAGREEMENT (Agreement) is entered into by and between Be Vu, Suk 2 Kit Wong, and Gurgen Hovhannisyan, hereinafter referred to as PE'ITI'IONERS, and Clifford 3 Allenby, in his official capacity as interim Director of the Department of Social Services, State of 4 California (successor to Tameron Mitchell and Larry Bolton, Chief Deputy Directors) and 5 Department of Social Services, State of California, herein referred to collectively as 6 RESPONDENTS. 7 8 RECITALS WHEREAS, on July 15, 2004, PETITIONERS file\ufffd a Petition for a Writ of Mandamus 9 ordering RESPONDENTS to 1) estimate the number oflow-income single-language minority 10 _ households, both participating and not participating in the Food Stamp program, for each project -- - \u00b7\u00b7\u00b7 -11 -\u00b7 --area \u00b7and\u00b7 certification-office-in-Galifomia,--as-required-by-federal--Food Stam.p-law-and--- \u00b7\u00b7-- . - -- .. 12 implementing regulations, 7 U.S.C\ufffd 2020 (c), (e)(l), (e){2)(A) and 7 C.F.R. 272.4 (b)(6);\u00b7 13 2) translate all Food Statnp pro\ufffd materials into all languages spoken by at least 100 single- 14 language minority low-income households served by the same certification office, as required by 15 f\ufffd Food Stamp law and implementing regulations, 7 U.S.C. 2020 (c), (e)(l), (e)(2)(A); 16 7 C.F.R. . 272.4 (b){2)(iii), (b)(3)(i); 272.5 (b)(4); and 3) cease implementation ofMPP 17 63-202.2 and to prQmulgate a new regulation that comports with fe<;leral Food Stamp bilingr.1al 18 requirements; 19 WHEREAS, PETmONERS and RESPONDENTS desire to resolve their dispute according 20 to the terms set forth in this Agreement; 21 \/\/\/\/\/\/I I I I I I I I I I I I I I I I If I I I I I I I I I I I I I I I I I I I I I I I I I I 22 \ufffdII I I I I I I I I I I I I I I I I I I I I I I I I I I I I! I I I I I I I I I I I I I I I I I I I 23 \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ 24 I I I I I I I I I I I I I I I I I I I I I I I I I I I l I I I I I I I I I I I I I I I I I I I I I \/ 25 I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I 3\ufffd \u00b7 Settlement Agreement an 7,osed]' Order Vu et al. v. Mitchell et al., Case No. CPF-04-504362 1 2 AGREEMENT FOR VALUABLE CONSIDERATION, including the promises set forth in this 3 SETTLE:MENT, PETmONERS and RESPONDENTS agree to the following terms: _4 5 6 Definitions 1. \"Agreement\" means this SettlemeJ.'.lt Agreement. 2. \"Circumstances beyond the agency's control\" means events or occurrences that the 7 Department of Social Services has no power to change or affect, that the Department could not 8 have changed or affected had it engaged in reasonable preparation, and that fiustrate, delay, or 9 impede the Department's ability.to meet the time frames for translation in i'f,Js 15, 16, 17, and 18. 10 3. \"Civil Rights Compliance Review Process\" means the reviews conducted by California -- --- -\u00b7 ---H..-- --Department-ef Sooial--SeFVices-Ci:vi-1-Rights-Bureau-af-county-welfare-\u00b7 departments -pursuant-to-- __ _ 12 MPP 21-201.3. 4. ''Eight (8) additional languages\" means: Arabic, Armenian, Cambodian, Farsi, Hmong, 14 Korean, Lao, and Tagalog. 15 5. ''Estimate\" means the estimate of the number of low-income single-language minority 16 households referred to in 7 C.F.R. 272A (b}(6). 17 . . 6. ''Foo\ufffd _Stamp forms and materials\" and ''Food Stamp forms ,, mean Food Stamp program 18 information and certification materials as referred to in 7 C.F .R. 272.4 (b ). In this Agreement, 19 ''Food Stamp forms'' has the same meaning.as ''Food Stamp forms and materials.\" 20 7. ''Food \ufffdtamp Program\" refers to the program \u00b7created by the Food Stamp Act, 7 U.S.C. \u00b7 21 2020 et seq. and its implementing regulations, 7 C.F.R. Part 271 et seq. 22 8. \"Four ( 4) existing languages\" means Chinese, Russian, Spanish, and Vietnamese. 23 9. \"Low-income single-language minority households\" refers to households as provided in 24 7 C.F.R. 271.2 and 272.4 (b)(l). 25 10. \"New or revised forms\" means new Food Stamp forms or materials or revisions to Food 4 Settlement Agreement and [P: o\ufffd] Order Vu et al. v. Mitchell et al., Case No. CPF-04-S04362 1 Stamp forms or materials listed on Attachment A that are developed after June 30, 2006. 2 11. ''Notice of Approval of this Agreement by the Court\" means five (5) business days after 3 the date on \ufffdhich Petitioners send Respondents' counsel the Notice of Entry of Judgment. 4 12. \"State Fair Hearing Issue Codes\" means the numeric codes assigned by the California 5 Department of Social Senrices (CDSS) Fair Hearing Division to specific substantive or 6 procedural issues involved in the state fair hearings and used for purposes of tracking and filing 7 decisions by issue. 8 13. \"Survey of Ope\ufffdons and Access\" means the Annual County Food Stamp Program 9 11 Smvey of Operations and Access that the Respondents transmit to the counti\ufffd for completion 10 each year . . . - . ---\u00b7\u00b7\u00b7+1 . ---14\ufffd--!\ufffdT-welve{-12\u2794 languages!!..means-the-\ufffd-$our-(4)-existing-languages'\ufffd-an.d--thel.\ufffdight-(8).--- --\u00b7\u00b7- _ -\ufffd- __ _ 12 additional languages.\" 13 14 Translation of Food Stamp \ufffdorms and materials 15. After the Notice of Approval of this Agreement by the Court, RESPONDENTS will 15 translate the Food Stamp program forms and materials identified in Attachment A into the eight 16 (8) additional languages. RESPONDENTS will complete the translations in the fol\ufffdowing 17, manner: 18 a. Forms designated in Attachment A as ''High Priority'' will be translated into the 8 19 additional languages within six (6) months from the Notice of Approval of this Agreement by the 20 Court. 21 b. Forms designated in Attachment A as \"Moderate Priority'' or ''Lowest Priority'' will be 22 II translated into the 8 additional languages within twelve (12) months from the Notice of Approval 23 of this Agreement by the_ Court. 24 16. RESPONDENTS' current policy is to translate Food Stamp forms into the four (4) 25 existing languages. After Notice of Approval of this Agreement by the Co\ufffd, RESPONDENTS Vu et al. v. Mitchell et al., Case No. CPF-04-504362 - -- -- \u00b7- - - ---- -- ------ _________ ., __ ____________ - --------- ----- \u00b7-------- -\u00b7- -- ----- - - - ---- - - \u00b7\u00b7-- -- -\u00b7\u00b7- - -- 1 will translate into any or all of the four ( 4) existing languages, Food Stamp forms listed on 2 Attachment A that have not yet been translated into each. of the four (4) existing languages. 3 These forms include: . 4 5 6 7 8 9 10 H DP A 353 - Nptice to Aid to Families with Dependent Children and\/or Food Stamp Administrative Disqualification Hearing DFA 435 - County allegation of intentional program violation\/statement of position DPA 478 - Disqualification consent agreement food stamp program ------ --1-1\u00b7- - \u00b7 - ... -- \u00b7 -- \u00b7--- ,, ___ - --\u00b7 \u00b7---\u00b7 -- - --\u00b7 -- --- \u00b7- \u00b7-\" \u00b7- . . ----\u00b7 \u00b7-\u00b7\u00b7\u00b7-- \u00b7-- -- .. ... .. \u00b7- -- . -\u00b7- \u00b7-\u00b7\u00b7\u00b7- \u00b7---\u00b7- _,, .. ,_ \u00b7\u00b7-\u00b7- \u00b7 - --\u00b7 \u00b7-\u00b7\u00b7\u00b7\u00b7 - \u00b7-- \u00b7-\u00b7 --\ufffd \u00b7--\u00b7\u00b7 - \u00b7 \u00b7 - \u00b7 ' . 12 13 14 15 FS. 13 - Notice to all food stamp members who must pay child support NA 1215 - Food stamp notice of change (termination) 16 RESPONDENTS will translate these forms within the following time frames according to their 1 7 designated priority sta\ufffd on Atta\ufffdhment A. High Priority forms will be tr\ufffdlated within six (6) 18 months from the Notice of Approval of this Agreement by \ufffde Court. \"Moderate\" or ''Lowest 19 Priority\" forms will be translated_ within twelve (12) months from Notice of Approval of this 20 Agreement by the Court. 21 I 17. RESPONDENTS\u00b7s\ufffd ensure that new and revised Food Stamp f\ufffd and materials 22 II developed during the term of this Agreement shall be translated into the twelve (12) languages as 23 follows: 24 \u00b7a RESPONDENTS will designate each new or revised form and materials as ''High 25 Priority,\" hModerate Priority,n or \"Lowest Priority,\" and add each new item to the next Reporting Settlement Agreement and 9,oposcdi Order Vu et al v. Mitchell et al.\u00bb Case No. CPF-04-S04362 1 Matrix list described in ,r22, with identification of the effective date of each document. 2 b. RESPONDENTS will complete translation of new or revised fonns and materials within 3 the following time frames for each priority group: \"High Priority\" forms will be completed 4 within six months of the Notice of Approval of this Agreement by the Court or three months 5 after the effective date of the new or revised form., whichever is later. \"Moderate Priority'' and 6 ''Lowest Priority'' \ufffdorms will be translated within twelve (12) months of\ufffde Notice of Approval 7 of this Agreement by the Court or three months after th\ufffd effective date. of the new or revised 8 form, whichever is - later. 9 18 . If any estimate prepared during the term of this Agreement pursuant to 1 30 indicates that 10 Food Stamp forms must be translated into any language(s) other than the twelve (12) languages, -- ---1-1-- --\u00b7as--:reqwred-by-7-'Q\"-;S.G.- \ufffd02Q-(o-),(e)(l),-(-e)(-20(A-),-and-7--G.F.R.-- --2-12-.4-\u20acb)(-2-)Eili);-\ufffd)(-3)(i};------ ........ ------ 12 272.5 (b )( 4), RESPONDENJ'S shall translate all Food Stamp forms and _materials into that 13 language(s) as follows: 14 a. During the tenn of this Agreement, the RESPONDENTS shall translate into the new 15 language(s) the Food Stamp forms and materials identified on the most recently issued Reporting 16 Matrix (Attachment B). Forms designated on the Reporting Matrix as \"High Prior.ity'' will be 17 translated into the new language(s) within six (6) months from the issuance of the estimate. 1 8 Forms designated on the Reporting Matrix . as ''Moderate Priority'' or \"Lowest Priority'' will be 19 translated into the new language(s) within twelve (12) months from issuance of the estimate. 20 19. RESPONDENTS will translate Food Stamp forms within the time frames provided in 21 ff 15(a),(b); 16; l 7(b); 1 8(a). In any instance in which RESPONDENTS claim that they are 22 unabie to meet the time frames for completing translations because of circumstances beyond the 23 agency's control, RESPONDENTS will take the following steps: 24 a. As soon as RESPONDENTS have reason to believe they are unable to meet the time 25 frames for completing translation, but no later than the expiration of the particular tjme \ufffdame for 7 Settlement Agreement and [J>mpn:tLi}Order Vu et al. v. Mitchell et al., Case No. CPF-04-504362 1 translation of the forms, RESPONDENTS will send a report to PETITIONERS’ counsel that . . 2 identifies: 1) each Food Stamp form that will not be translated into a specific language within . 3 the required time frame; 2) the reason for the RESPONDENTS’ inability to meet the deadline for 4 translation; 3) an explanation ofhow this constitutes .\”circumstances beyond the agency’s 5 \u00b7 control;\” 4) when they learned of the problem; and 5) the steps- they are taldng or will take to 6 complete the \ufffdlation( s ). 7 _b. Upon submitting the report in ifl9a, RESPONDENTS shall have an additio\ufffd 90 days 8 from the expiration \ufffdf the original time frame in which to complete the required translation(s) 9 \u00b7i unless PETIDONERS dispute RESPONDENTS’ assertion of good cause. If PETITIONERS 1 0 dispute RESPONDENTS assertion of good cause, they shall notify RESPONDENTS within . -\u00b7\u00b7\u00b7–\u00b7\u00b7\u00b7+1 \u00b7\u00b7\u00b7 -fourteen-(-1-4)-days-ef-reoeiving-R:ESP()NDBN-fS!-report–and-the\u00b7-pames -shall-meet-promptly-to– — \u00b7\u00b7\u00b7\u00b7\u00b7\u00b7-\u00b7- \u00b7 \u00b7\u00b7- \u00b7 … 12 attempt to reconcile their differences. If the parties are not able to reconcile their differences, 13 PETITIONERS may seek relief from the c\ufffdurt. 14 20. If, based on a current language estimate conducted pursuant to ,r 30, RESPONDENfS 15 conclude that they are no longer required by federal Food Stamp law and regulation to translate 16 Food Stamp forms and materials into specific language(s), they shall notify PETITIONERS’ 17 counsel of that conclusion, the basis for the conclusion, and the date on-which they will no longer 1 8 translate Food Stamp forms into the specific language(s). RESPONDENTS will continue _to 19 make available to and require counties to use forms already translated, as long as those forms 20 remain in effect and unrevised. 21 21 . On a monthly basis, the Respondents shall notify the counties electronically and, if they 22 ii choose, via maj] of the form(s) translated during the month. The notice to counties shall identify \u00b7 23 the form(s) and language(s) into which the form(s) have been translated. The notice shall include 24 a statement instructing the counties to use the translated form(s) immediately upon receipt of the 25 notice of translation and shall include the CDSS website address where the translated forms may 8 b,< Settlement Agreement and (:Ptoposcd] Order Vu et al. v. Mitchell et al., Case No. CPF-04-504362 . \u00b7- - - .. . - --- - - - \u00b7\u00b7 .. -- \u00b7 -- \u00b7\u00b7 . . .. . . . 1 be obtained. Respondents shall provide the PETITIONERS' counsel with a copy of this notice 2 each month at the time they provide the monthly Reporting Matrix described in , 22. 3 4 Reporting on Translation Progress 22. Within ten (10) business days of the Notice of Approv\ufffd of this Agreement by the Court, 5 RESPONDENTS shall prepare and submit to PETITIONERS the Reporting Matrix list 6 (Attachment B) that they will use to monitor and report on the translation progress of the 7 materials listed in Attachment A and any new forms and materials described in 1 17. This 8 Reporting Matrix shall also be used to report the translation progress for forms and materials if 9 RESPONDENTS ' estimate pursuant to 1 30 requires that forms \ufffde translated into languages 10 other than the twelve (12) language(s). The Reporting Matrix shall be similar in content and \u00b7- -- ---- \u00b7\u00b7\u00b7H\u00b7- -form-to\u00b7-A:ttachm.ent-B\u00b7\u00b7and-shall-include\u00b7\u00b7the-following-information\ufffd----\u00b7-\u00b7\u00b7--\u00b7--- ---- --- \u00b7\u00b7-\u00b7 -\u00b7\u00b7 -----\u00b7 ---\u00b7- -\u00b7-- \u00b7-\u00b7----\u00b7- \u00b7\u00b7\u00b7 __ _ 12 . . a A listing of each Food Stamp form identified in Attachment A by form number and title 13 and any new or revised fo\ufffds developed pursuant to ,r 17 by form number and title; 14 b. A designation with respect to each fo\ufffd of whether it is \"High Priority,\" ''Medium \u00b7 15 Priority,\" or \"Lowest Priority''; . . 16 c. For new or revised forms, an indication tjiat it is a new or revised fonn, its effective date 1 7 and a High, Medium, or Lowest Priority designation. RESPONDENTS will determine priority 18 designation based on :frequency of usage with respect to revised forms. With respect to new . 19 forms, RESPONDENTS will determine the priority designation based on the importance of the 20 form to the household's receipt or retention of benefits; 21 d For each form that is deactivated or no longer in use, an indication to this effect and the 22 date of the deactivation; 23 e. An indication of the date on which RESPONDENTS will cease translating forms into a 24 specific language, it: based on a current language estimate conducted pursuant to ,r 30, 25 RESPONDENTS decide not to do _further translations because they are no longer required by Settlement Agreement and\ufffdrder Vu et al. v. Mitchell et al., Case No. CPF-04-S04362 1 Food Stamp law and regulations. 2 f. For each form the due date for translation into each language pursuant to ,i,I 1 5(a),(b); 16; 3 17(b); 18(a); 4 g. For each form which RESPONDENTS must translate pursuant to ,r,r 15-1 8, the following 5 information will be provided in each monthly report: 6 7 8 and 9 i. Whether the form is available for ongoing use in each language; ii. For forms that have been sent for translation, the date the form was sent for translation; iii. For forms transiated after Notice of Approval of this Agreement by the Court, an 1 O indication that the form h\ufffds been translated into a particular language and the date by which. \u00b7 \u00b7\u00b7\u00b7\u00b7-\u00b7\u00b7 \u00b7--\u00b7-1-l- -oounties -must-use-the-uanslated-form..---\u00b7 \u00b7 -----\u00b7- \u00b7----------- ---------\u00b7---------\u00b7--\u00b7-\u00b7- ---------\u00b7\u00b7-- \u00b7 -\u00b7-- __ _ __ . ___________ _ I 12 23\ufffd Commencing on the fifteenth of the second month following the month of Notice of 13 Approval of this Agreement by the Court and thereafter on the fifteenth of each month, 14 RESPONDENTS shall provide PETITIONERS' counsel with the Reporting Matrix referred to in 15 1 22 that contains the information described in ,r _22 with respect to the preceding month. 16 17 Instructions to County Departments of Social Services 24. Within 60 days after the Notice of Approval of this Agreement by the Court, 18 RESPONDENTS shall issue an All County Letter (ACL) or All County Information Notice 19 (ACIN) that includes the following : 20 a. \ufffd explanation of the RESPONDENTS' plans to translate Food Stamp forms and 21 materials into the 8 additional languages; 24 25 b. The Food Stamp translation obligations; c. An attached copy of this Agreement signed by the Court; d. A copy of the Report Matrix referred to in 1 22; e. That counties shall immediately use a translated form once RESPO'l'l1JE\u00b0N1S have Settlement Agreement and.fPrep Order Vu ct al. v. Mitchell et al., Case No:CPF--04-504362 10 \ufffd : ' 1 \u00b7 provided the translated form to the counties; 2 f. Specify RESPONDENTS' procedure for making newly translated fonns available to the 3 counties; 4 g. An explanation of the procedures governing the approval and use of substituted forms 5 when CDSS has translated the form; 6 h. That translated. forms shall be used despite any limitations that automated systems may 7 impose on the use of translated fomi.s; and 8 . i. That RESPONDENTS will monitor counties' use of translated fonns through the Civil 9 Rights compliance review process, Annual Food Stamp Program Survey, and state fair hearing 1 O codes, as described below, and any other additional means they choose . . . . - \u00b7-- --\u00b7\u00b7\u00b71-1 - -- ---2-5-;-W-ithin-30-days-after-the-Notice-of-Appreval--of-tbis-Agfeement-by-the-Gourt,-but-no -later-- -\u00b7-- \u00b7 -\u00b7\u00b7-\u00b7\u00b7\u00b7\u00b7- 12 than the date on wbi\ufffdh the draft ACL or AC1N is distributed to the counties for review or 1\u00b73 comment, RESPONDENTS shall provide a _draft of the ACL or ACJN referred to in ,I 24 to 14 PETITIONERS' counsel for comment. PETITIONERS' counsel shall forward any written 15 comments regarding the draft instructions to RESPONDENTS' attorney within 15 days of their 16 receipt of the draft instructions. . 17 1 8 Monitoring County Departme\ufffdts of Social Services' Use of Translated Forms 26. During the term of this Agreement RESPONDENTS will use the Civil Rights 19 Compliance Review proces\ufffd to monitor the counties' use of translated forms as follows: 20 RESPONDENTS' civil rights compliance review process will includ.e a determination, 21 utilizing the most current version of the Reporting Matrix, whether county departments of social 22 seiyices are using the appropriate translated forms. 23 27. During the term of this Agreement, RESPO\ufffdENfS will use the annual County Food \u00b7 24 S\ufffdp Program Survey of Operations and Access to monitor counties' use of translated forms: 25 For the Survey of Operations and Access for the Fiscal Year July 1, 2005 - June 30, 2006\ufffd 11 \ufffd Settlement Agreement and fP,ep Order Vu et al. v. Mitchell et al., Case No. CPF-04-504362 1 and subsequent surveys conducted during the term of this Agreement, RESPONDENTS will 2 include question 2 of the survey form transmitted by All County Information Notice No. I-30-05 3 (July 6, 2005) (Attachment C), modified to include Spanish in the list of languages. 4 28. During the term of this Agreement, RESPONDENTS will monitor counties' use of S translated forms through the state fair hearing process as follows: 6 a. Within 30 days of the Notice of Approval of this Agreement by the Court, 7 RESPONDENTS will amend the state fair hearing issue codes to identify issues related to\u00b7 8 translation of forms. RESPONDENTS will issue instructions to the Administrative Law Judges 9 regarding the use of these codes. \u00b7Toe instructions shall provide that the case shall be coded as 1 O having a ''translation of fo\ufffds\" issue code whenever the claimant or the Administrative Law \u00b7 -\u00b7--\u00b7- \u00b7\u00b7 +I-- -Judge-identifies-the-issue-of-forms-or-materials-being-provided-in\u00b7\u00b7a \u00b7-language-other--than\u00b7the-- --\u00b7-- -- \u00b7--\u00b7\u00b7\u00b7-\u00b7-- 12 claimant's primary language. These instructions shall be effective upon issuance. 13 \u00b7 RESPONDENTS shall provide PETITIONERS' counsel a copy of these instructions upon their 14 issuance. 1 5 29. During the term of this Agreement, RESPONDENTS shall provide PETITIONERS' 16 counsel with a copy of the results of the above monitoring processes as follows: 17 a. RESPONDENTS will provid\ufffd PETffiONERS' counsel with the tabulation and RnB:lysis of 18 the survey results from the County Food Stamp Program Survey of Operations and Access at the 19 same time as the results are transmitted to the counties. 20 b. RESPONDENTS will provid\ufffd PETITIONERS' co\ufffdsel with the original civil rights 21 compliance review reports within 30 days of their completion. 22 c. RESPONDENTS will provide PETITIONERS' counsel data indicating the total number II 23 I of state Food Stamp fair hearings and the number of state Food Stamp fair hearings assigned the 24 code{s) indicating a translation issue. RESPONDENTS will provide the data to PETITIONERS' 25 counsel twice a year for the periods January through June and July through December within 30 1 days after the end of each period. 2 3 Estimating the number of low-income single-language minority households 30. RESPONDENTS shall develop an estimate of the number of low-income single- 4 language minority households, pursuant to 7 C.F.R. 272.4 (b)(6) as follows: 5 a. Within 60 days of the Notice of Approval {?f this Agreement by the Court, 6 RESPONDENTS shall provide PETIDONERS' \ufffdllllsel with their initial estimate methodology 7 and allow PETITIONERS ten (10) business days to comment. RESPONDENTS shall :finalize 8 their initial estimate methodology wi\ufffd 60 days of receiving PETITIONERS' comments. 9 b. Within 90 days after :finalizing the initial year's methodology, RESPONDENTS shall 1 O complete their estimate of the number oflow-income single-language minority households. -\u00b7 -- -\u00b7-\u00b7\u00b7 -1-l- -lJpon-its-oompletio11;-RESPQNDmr.rS!...sball-pro\u00a5ide-PET-!IlONRRS!-counsel--with-the.estimate.- ____ . _ \u00b7-\u00b7\u00b7 \u00b7 \u00b7\u00b7-\u00b7 12 c. RESPONDENTS shall update the estimate annually from the date of the initial estimate. \u00b7 1 3 RESPONDENTS may change the methodology used, but shall notify PETITIONERS' counsel 14 during the term of this Agreement of any changes in the method CDSS intends to use in making 15 the estimate and allow PETffiO\ufffd' counsel ten (10) business days to comment before any 16 changes to the methodology are :finalized. Upon completion of the annual estimate, 17 . RESPONDENTS shall provide PETITIONERS' counsel with the estim,ate. 1 8 1 9 General Provisions 31 . The parties agree that this Petition shall be dismissed with prejudice, except that 20 PETITIONERS' claims with respect to their Second Cause of Action regarding the 21 \u00b7 \ufffdSPONDENTS' obligations under federal Food Stamp law to translate forms and materials for 22 l the work component of the CaiWORKs \ufffdd General Assistance programs in which Food Stamp 23 rt?Cipients must participate are dismissed without prejudice. 24 32. RESPONDENTS agree that PEfflIONERS are entitled to attomeys' fees and costs 25 pursuant to California Code of Civil Procedure sections 1095 and 1021 .5 . 13 ;\ufffd Settlem\ufffdnt Agreement and tp,e;;\ufffdOrder Vu et al. v. Mitchell et al., Case No. CPF-04-504362 ' I 1 33 . Within 45 days after .the Notice of Approval of this Agreement by the Court, National 2 Center for Law and Economic Justice (formerly Welfare Law Center) and Coalition of California 3 Welfare Rights Organizations shall sttbmit their request for attorneys' fees to RESPONDENTS. 4 If, within 120 days of Notice of Entry of Judgment, the parties cannot agree on attorneys' fees, 5 the matter shall be submitted to the Court for determination, unless the Court extends the time 6 . for the parties to resolve the fees issue. If PETITIONERS submit their request for attorneys' fees 7 to the Court, RESPONDENTS shall not challenge PETITIONERS' entitlement to att\ufffdmeys' \u00b7 8 fees, but only the amount of the request. 9 34. ff PETITIONERS seek reimbursement for costs, they shall file a memorandum. of costs 1 0 pursuant to California Rules of Court section 870. -\u00b7\u00b7----\u00b7 --1-1-- ---- -\ufffdS.--This-\u00b7Settlement-Agr:eement-shall-be--govemed-by-the-laws-ef-the-\ufffdtate-of-Galifomia--and--- --\u00b7-\u00b7\u00b7:---\u00b7-\u00b7-\u00b7- 12 Federal Food Stamp laws and regulations. Any proceeding regarding enforcement of this 1 3 Settlement Agreement shall be brought in th\ufffd County of San Francis_co. 14 36. The persons signing this Agreement represent that they have the authority to enter into 15 this Agreement on behalf of the respectiv:e parties that they represent and that this Agreement 16 shall be binding upon, and inure to the benefit of the Parties, their successors, and assigns. 17 \u00b7\u00b7 \u00b7 37. This Agreement has been drafted by all parties. In tlie event a court \ufffds required to 18 intetpret this Agreement, no party shall have the right to argue that the other is responsible for 19 any ambiguity in the language of the Agreement, and any uncertainty or ambiguity shall not be 20 interpreted against any one party. 21 38. Notwithstanding the provisions of this Settlement Agreement, RESPONDENTS reserve 22 1 the right to impiement, change, or otherwise alter or amend the procedures and requirem\ufffdts of. 23 this Settlement Agreement if required by intervening changes in federal statute,. regulation, or . 24 written federal instruction inconsistent with this Settlement Agreement. RESPONDENTS shall 25 provide counsel for PEmIONERS-with written notification, by certified mail or by hand . 14 \ufffd\ufffd Settlement Agreement and [f?:L rder Vu et al. v. Mitchel] et al., Case No. CPF-04-504362 I delivery with written aclmowledgment of receipt, of a required change at least thirty (30) days 2 prior to the commencement of implementation, unless RESPONDENTS are required to 3 implement such a required change in less than thirty (30) days. If RESPONDENTS are required 4 to implement a required change in less than thirty (30) days, RESPONDENTS shall provide 5 notice to PETITIONERS' counsel no\u00b7 later than seven (7) working days after learning of a 6 required change. PETITIONERS shall have the right to challenge whether the change is required 7 by federal statute, regulations, or written instructions. 8 39. The Court shall retain jurisdiction to enforce the provisions of this Settlement Agreement 9 1 for a petiod of 30 months from the date of the court's approval of this Agreement, except as . 1 0 follows: - \u00b7- - \u00b7\u00b7\u00b7\u00b7 --1-1- -\u00b7\u00b7 \u00b7 a.----If-an-estimate-aonducted-during-the-30\ufffdmonth-temi-of-this -Agr,eemen.t-r.equixes-that-F-oocL-- .. __ __ __ \u00b7- -\ufffd . --\u00b7-\u00b7\u00b7\u00b7 12 Stamp forms be translated into additional language( s ), the Court shall retain jurisdiction until the 13 RESPONDENTS complete the translation of Food Stamp forms in effect on the date the estimate 14 was finalized. The Court shall retain jurisdiction only to enforce the Respondent's translation 15 obligation under ,r 18 with respect to the additional language(s) and the RESPONDENTS' 16 obligation to report monthly to PETITTONERS on translation progress with respect to the 17 additional language(s) pursuant to fl 22 and 23. 1 8 b. If the RESPONDENTS obtain an extension of the time frame for completing the required 19 translations, pursuant to 1 19, the term of this Agreement shall be extended for a period of time 20 equal to any extension(s) of the deadline for completing translations. 21 \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ 22 I I I I I I I I I I I I I I I i I I I I I I I I i I I I i I I I I I I I i I I i I i i i I I I i I I 23 I I I I I I I I I I I I I I I I I I I I. I i I I I I I I I I I I I I I I I I I I I I I I I I I I I I 24 \/ l l \/ ! I I I J \/\/ I \/ \/ \/\/ \/ I \/ I \/ I I \/ I I I \/ I I I \/ \/ I \/ I \/ \/ \/ \/ I I \/ \/ I \/ I \/ \/\/ \u00b0 25 I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I f I I I I I I I I I I I I I I I I I i I ' l l . . j I 1 1N WITNESS WHEREOF, the Parties have executed this SETTLEMENT AGREEMENT as of 2 the date set forth adjacent to each of their respective signatures. 3 4 5 6 7 8 DATED : 9 1 0 ATTORNEYS FOR PEMIONERS Legal Services ofNorthem Califon-.ria -- -- -& -DA:-'FBB:----1-\ufffdJbib.'--.. - -\u00b7\u00b7 ---\u00b7 - -\ufffd-_,-- --4--f..\u00a5,=-l'-+----1-\ufffd\ufffd\ufffd--- ----------, ----\u00b7-- ---- \u00b7\u00b7 \u00b7\u00b7- \u00b7\u00b7-- 12 13 14 DATED: 1co\/s1frt, MARY R MANNIX 15 National Center for Law and Economic Justice 16 17 DATED: \\ l lq lo\ufffd 18 GI.L'lotP,'--'J.J -ALLI Coalition \u00b7 of Califomi\ufffd elfare Rights Organizations 19 \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ 20 \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \u00b7 \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ 21 \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ \/ ! I I I I I I I I I I I I I I I I I I I I I I \/ _ \/ I I I I 22 \/ \/ \/ \/ \/ \/ I I I I .I. I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I l I I I I I I I 23 I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I , I I I I I I I I I I I I I I I I \/ 24 \/ \/ I I I I I I I I I I I I I I l I I I I I I I I I I I I I I I I f I I I I I I I I I I I I I I \/ \/ 25 \/ \/ \/ 1 \u00b7 1 ( I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I J I \/ \/ 16 Settlement Agreement and \ufffd Order Vu et al. v. Mitchell et al., Case No. CPF\ufffd04-504362 1 2 3 AITORNEYS FOR RESPONDENTS 4 DATED: 5 _,,., JL\ufffd_l_ CE B. BOLTON Deputy Director, Legal Division California Department of Social Services 6 8 DATED: \/j \/1 \/0 6 J l \ufffd\/- \ufffd 10 - -\u00b7 -\u00b7 --------11- 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CHERYL INER Deputy At:tomey General for BILL LOCKYER Attorney General of the State of California \u00b7. . - . . . - - -\u00b7-\u00b7 --\u00b7\u00b7-\u00b7-- - - ---- -- -\u00b7--- \ufffd =- \u00b7 -\"'-=- - --\u00b7-\u00b7\"''' Having read the Settlement Agreement, it is so ordered. Ut.L U 4 2006 DATED: _____ _ Judge of the Superior Court "

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” 1 14-1328-cv Briggs v. Bremby 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term, 2014 5 6 (Argued: March 3, 2015 Decided: July 6, 2015) 7 8 Docket No. 14-1328-cv 9 10 11 JAMES BRIGGS, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS 12 SIMILARLY SITUATED, 13 14 Plaintiff-Appellee, 15 16 v. 17 18 RODERICK BREMBY, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE 19 STATE OF CONNECTICUT DEPARTMENT OF SOCIAL SERVICES, 20 21 Defendant-Appellant. 22 23 24 Before: CALABRESI, HALL, and CARNEY, Circuit Judges. 25 26 Plaintiff brought suit on behalf of a class of food stamp applicants, arguing that the 27 Food Stamp Act requires the Connecticut Department of Social Services to provide food 28 stamp benefits to all eligible households within 30 or 7 days of application (depending on 29 the household’s level of economic need). The District Court granted Plaintiff classwide relief 30 through a preliminary injunction, and Defendant now appeals, arguing that there is no 31 private right of action to enforce the time limits of the Food Stamp Act under 42 U.S.C. 32 1983. Defendant further argues that federal regulations permit the Connecticut Department 33 of Social Services to take more time to process food stamp applications, thereby excusing it 34 from the seeming requirements of the statute. We conclude that (1) food stamp applicants 35 can sue under 1983 to enforce the statutory time limits for provision of food stamps, and 36 (2) federal regulations do not excuse Defendant from providing food stamps within the 37 statutory time limits. We therefore AFFIRM the judgment of the District Court. 38 MARC COHAN, National Center for Law and 39 Economic Justice, New York, NY (Mary R. Mannix and 40 Greg Bass, National Center for Economic Justice, and 41 Giovanna Shay, Lucy Potter, and Cecil Thomas, Greater 42 Hartford Legal Aid, on the brief), for Plaintiffs-Appellees. 43 2 1 HUGH BARBER, Assistant Attorney General 2 (Rosemary M. McGovern, Assistant Attorney General, 3 on the brief), for George Jepsen, Attorney General of 4 Connecticut, for Defendant-Appellant. 5 6 7 8 CALABRESI, Circuit Judge: 9 I. BACKGROUND 10 Plaintiff James Briggs brings this suit under 42 U.S.C. 1983 against the 11 Commissioner of the Connecticut Department of Social Services ( DSS ) to enforce the 12 Food Stamp Act’s time limits for awarding food stamp benefits. 7 U.S.C. 2020(e)(3) and 13 (9) provide that participating states shall give such benefits within 30 days of application to 14 eligible households, and within 7 days of application to especially needy households that 15 qualify for expedited benefits. Plaintiff sued in the United States District Court for the 16 District of Connecticut to enforce these time limits, and moved to certify a class of similarly 17 situated plaintiffs. 18 The District Court (Bryant, J.) certified a class consisting of all past, current, and 19 future Connecticut food stamp applicants whose applications are not processed in a timely 20 manner. The District Court also found that there was credible evidence that there is 21 ongoing, persistent systemic failure to comply with the strict unambiguous mandates 22 imposed by the [Food Stamp Act], and entered a preliminary injunction requiring the DSS 23 to process food stamp applications within the statutory deadlines. Briggs v. Bremby, 2012 WL 24 6026167 at *18-19 (D. Conn. Dec. 4, 2012). Defendant now appeals, arguing a) that the 25 Food Stamp Act does not give Plaintiff a right to the timely receipt of food stamps and, 26 therefore, that Plaintiff cannot seek to enforce these time limits under 42 U.S.C. 1983, and 27 3 b) that, in any event, federal regulations excuse the DSS from abiding by the seeming 1 statutory deadlines for providing food stamp benefits. 2 II. DISCUSSION 3 Where allegations of error in a preliminary injunction involve questions of law, our 4 review is de novo. Am. Express Fin. Advisors Inc. v. Thorley, 147 F.3d 229, 231 (2d Cir. 1998). 5 A. Plaintiff can maintain a private lawsuit under 42 U.S.C. 1983 to enforce the 6 statutory time limits in 7 U.S.C. 2020(e)(3) and (9) 7 8 7 U.S.C. 2020(e)(3) states: 9 The State plan of operation . . . . shall provide . . . . (3) that the State 10 agency shall thereafter promptly determine the eligibility of each applicant 11 household by way of verification of income . . . . household size (in any case 12 such size is questionable), and such other eligibility factors as the Secretary 13 determines to be necessary . . . . so as to complete certification of and provide 14 an allotment retroactive to the period of application to any eligible household 15 not later than thirty days following its filing of an application[.] 16 17 7 U.S.C. 2020(e)(9) states: 18 The State plan of operation . . . . shall provide . . . . (9) that the State 19 agency shall (A) provide benefits no later than 7 days after the date of 20 application to any household which– (i) (I) has gross income that is less than 21 $150 per month; or (II) is a destitute migrant or a seasonal farmworker 22 household in accordance with the regulations governing such households in 23 effect July 1, 1982; and (ii) has liquid resources that do not exceed $100[.] 24 25 In Blessing v. Freestone, 520 U.S. 329 (1997), the Supreme Court established a three-26 part test for determining whether a federal law creates a right that can presumptively be 27 enforced by private suit through 1983: 1) Congress must have intended that the provision 28 in question benefit the plaintiff, 2) the plaintiff must demonstrate that the right assertedly 29 protected by the statute is not so vague and amorphous that its enforcement would strain 30 judicial competence, and 3) the statute must unambiguously impose a binding obligation 31 4 on the States. Id. at 340-41 (internal citations and quotation marks omitted). The Court has 1 further clarified that it is rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that may 2 be enforced under 1983, and that nothing short of an unambiguously conferred right 3 will support a cause of action under 1983. Gonzaga University v. Doe, 536 U.S. 273, 283 4 (2002). If these requirements are met, then there is a rebuttable presumption that the 5 statutory right can be enforced through 1983. Id. at 341. 6 The two statutory time limits at issue in this case clearly meet the second and third 7 prongs of the Blessing test. They establish a right that is neither vague nor amorphous (both 8 provisions require the allotment of food stamps within a definite number of days), and they 9 impose binding obligations on the States (both provisions use the mandatory shall ). 10 Whether Congress intended these provisions to benefit food stamp applicants, as the first 11 Blessing prong requires, justifies a bit more discussion. 12 Plaintiff argues that the time limits were intended to benefit food stamp applicants by 13 ensuring the prompt provision of food stamps. Defendant contends instead that the time 14 limits were meant only to guide the States in how to marshal their resources when 15 administering food stamp programs. Three Supreme Court decisions inform our analysis of 16 whether these statutory provisions are sufficiently focused on benefitting the relevant 17 plaintiffs to be individually enforceable under 1983. 18 First, in Wright v. City of Roanoke Redevelopment & Housing Authority, 479 U.S. 418 19 (1987), the Court held that a rent ceiling provision of the Public Housing Act empowered 20 tenants to sue under 1983 to collect for past overcharges. The relevant provision, 42 21 U.S.C. 1437a, imposed the following rent ceiling requirement on local housing authorities: 22 Dwelling units assisted under this chapter shall be rented only to families 23 who are lower income families at the time of their initial occupancy of such 24 5 units. Reviews of family income shall be made at least annually. A family 1 shall pay as rent for a dwelling unit assisted under this chapter . . . the highest 2 of the following amounts, rounded to the nearest dollar: 3 (1) 30 per centum of the family’s monthly adjusted income; 4 (2) 10 per centum of the family’s monthly income; or 5 (3) if the family is receiving payments for welfare assistance from a public 6 agency and a part of such payments, adjusted in accordance with the family’s 7 actual housing costs, is specifically designated by such agency to meet the 8 family’s housing costs, the portion of such payments which is so designated. 9 10 Wright, 479 U.S. at 420 n.2 (internal quotation marks omitted). 11 This rent ceiling provision was part of a detailed statutory scheme that established 12 requirements for state and local housing authorities. But despite the fact that the statute was 13 directed at government agencies, the Court in Wright held that the rent ceiling provision was 14 enacted to benefit tenants. See Wright at 430. In drawing this conclusion, the Court focused 15 on the fact that the provision was calibrated to the economic needs of individual families, 16 determining each family’s rent based on a percentage of their monthly income. According to 17 the Court, this constituted powerful evidence that the provision was intended to benefit the 18 families, and not merely to direct the allocation of government resources. See Id. at 430 19 ( The [rent ceiling provision] could not be clearer: . . . tenants could be charged as rent no 20 more and no less than 30 percent of their income. This was a mandatory limitation focusing 21 on the individual family and its income. The intent to benefit tenants is undeniable. ). 22 Subsequently, in Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990), the Court 23 found a private right of action under 1983 to enforce a reimbursement provision of the 24 Medicaid Act. Wilder involved a statutory provision, 42 U.S.C. 1396a(a)(13)(A), that 25 required state Medicaid plans to provide reasonable and adequate rates of reimbursement 26 for health care providers treating needy individuals. In relevant part, 1396a(a)(13)(A) 27 stated the following: 28 6 [A] State plan for medical assistance must . . . . provide . . . for payment 1 . . . of the hospital services, nursing facility services, and services in an 2 intermediate care facility for the mentally retarded provided under the plan 3 through the use of rates (determined in accordance with methods and 4 standards developed by the State . . .) which the State finds, and makes 5 assurances satisfactory to the Secretary, are reasonable and adequate to meet 6 the costs which must be incurred by efficiently and economically operated 7 facilities in order to provide care and services in conformity with applicable 8 State and Federal laws, regulations, and quality and safety standards . . . . 9 10 Wilder, 496 U.S. at 502-03 (emphasis and internal quotation marks omitted). 11 This provision was explicitly directed at government actors. It referred to 12 requirements of the State plan and the procedures and policies developed by the State. 13 Nonetheless, the Court found that its terms were individually enforceable through private 14 lawsuits brought by health care providers under 1983. The Court did so in part because the 15 language indicated a clear intent to benefit these providers. Id. at 510 ( There can be little 16 doubt that health care providers are the intended beneficiaries of the [reimbursement 17 provision]. The provision establishes a system for reimbursement of providers and is 18 phrased in terms benefiting health care providers . . . . ). Wilder thus demonstrates that a 19 statute imposing a requirement on a State plan for administering a social welfare program 20 may nevertheless in appropriate circumstances give rise to a right enforceable under 1983, 21 for instance if it includes a specific mandate intended to give rights to a particular group. 22 Finally, in Gonzaga University v. Doe, 536 U.S. 273 (2002), the Court held that a 23 provision of the Family Educational Rights and Privacy Act ( FERPA ) could not be 24 individually enforced through 1983. The relevant provision, 20 U.S.C. 1232g(b)(1), 25 stated: 26 No funds shall be made available under any applicable program to any 27 educational agency or institution which has a policy or practice of permitting 28 the release of education records (or personally identifiable information 29 7 contained therein . . . ) of students without the written consent of their parents 1 to any individual, agency, or organization. 2 3 Gonzaga, 536 U.S. at 279 (internal quotation marks omitted). 4 The Court distinguished this provision from those in Wright and Wilder, noting three 5 of its features. First, the statutory language at issue in Gonzaga is focused on the educational 6 agencies being regulated rather than on the interests of students or parents. That is to say, 7 the provision lacks the sort of ‘rights-creating’ language critical to showing the requisite 8 congressional intent to create new rights. Id. at 287. Second, the provision regulates only 9 the general policy or practice of educational agencies and institutions regarding 10 disclosure, rather than focusing on specific instances of disclosure. Third, the provision 11 serves primarily to direct the distribution of federal resources. Id. at 287-91. Based on these 12 factors, the Court concluded that the provision was not intended to confer individual rights 13 upon students or parents, but was instead intended to impose a general rule for the use of 14 funds under FERPA. See also Loyal Tire & Auto Ctr., Inc. v. Town of Woodbury, 445 F.3d 136, 15 149 (2d Cir. 2006) (stating that the Gonzaga Court had used these three factors to distinguish 16 privately enforceable rights from vaguer benefits or interests ). 17 Wright and Wilder both strongly counsel in favor of finding the time limits of 7 18 U.S.C. 2020(e)(3) and (9) privately enforceable under 1983. Like the provisions in 19 Wright and Wilder, the Food Stamp Act’s time limits are drafted in a way that focuses on the 20 needs of the individual beneficiaries. They require that households’ eligibility be determined 21 promptly, and that allotments be provided retroactive to the period of application. They 22 are also calibrated to household income eligible households are to be provided food stamp 23 benefits within 30 days, but especially needy ones are to receive such benefits within 7 days. 24 8 And, while the Food Stamp Act’s time limits are written as requirements for a State plan of 1 operation, the Court in Wilder concluded that such a formulation can be fully consistent 2 with a legislative intent to confer enforceable rights upon the relevant plaintiffs. Wilder, 496 3 U.S. at 523. Indeed, it is commonplace that laws designed to protect individual rights are 4 formulated as restrictions on government action. See, e.g., U.S. Const. amend. I ( Congress 5 shall make no law . . . ). 6 Nor does Gonzaga undercut the applicability of Wright and Wilder to the case before 7 us. None of the three factors that the Supreme Court used to distinguish the statute in 8 Gonzaga from those in Wright and Wilder apply to the provisions here. Unlike the funding 9 provision involved in Gonzaga, the Food Stamp Act’s time limits (1) contain language that is 10 focused on the interests of the applicant households and calibrated to their economic needs, 11 (2) create a specific requirement that must be followed for every food stamp applicant, 12 rather than a generalized policy or practice, and (3) do not merely direct the distribution 13 of funds. These factors establish that Congress has conferred individual rights upon food 14 stamp applicants in clear and unambiguous terms, and Gonzaga is thus distinguishable. 15 The law of our circuit concerning the private enforceability of time limits in social 16 welfare statutes is, moreover, in full accord with our reading of these three Supreme Court 17 cases. See, e.g., Shakhnes v. Berlin, 689 F.3d 244, 247, 254, 256-57 (2d Cir. 2012) (concluding 18 that private plaintiffs can sue under 1983 to enforce a Medicaid provision, 42 U.S.C. 19 1396a(a)(3), which requires that a State plan must provide an opportunity for a fair 20 hearing before the State agency to any individual whose claim for medical assistance under 21 the plan is denied or is not acted upon with reasonable promptness, and concluding, also, 22 9 that such plaintiffs can enforce a regulation providing that such a hearing will occur 1 ordinarily within 90 days of a hearing request). 2 Accordingly, we find that 7 U.S.C. 2020(e)(3) and (9) satisfy the Blessing test, and 3 therefore create a rebuttable presumption that the time limits in those sections are privately 4 enforceable under 1983. Blessing, 520 U.S. at 341. This presumption can, however, be 5 overcome if Congress precluded recourse to 1983 either expressly, or impliedly, by 6 creating a comprehensive enforcement scheme that is incompatible with individual 7 enforcement under 1983. Id. 8 Briggs’s assertion that Congress intended to confer individual rights to timely 9 determination of food stamp eligibility is undermined, Defendant argues, by Congress’s 10 authorization of administrative enforcement of the Food Stamp Act’s time limits. In 11 particular, 7 U.S.C. 2020(g) empowers the Secretary of Agriculture to investigate State 12 noncompliance, withhold federal funds, and refer a noncompliant State to the Attorney 13 General to seek an injunction. Defendant asserts that Congress’s grant of those enforcement 14 powers to the Secretary demonstrates that Congress did not intend to permit parallel 15 enforcement by individuals in federal and state courts. Notably, the Supreme Court 16 concluded in Gonzaga that Congress did not mean to confer individual rights under FERPA, 17 in part because that statute created a comprehensive and centralized agency hearing 18 procedure to deal with individual complaints. See Gonzaga, 536 U.S. at 289-90. In stark 19 contrast with FERPA, however, the Food Stamp Act contains no similar agency 20 adjudication process or enforcement structure that could take the place of private lawsuits. 21 Rather, the statute before us is analogous to those in Wright and Wilder. The statutes in both 22 of those cases gave the appropriate federal agencies the power to exercise oversight and 23 10 withhold funds, but that authority was held to be consistent with a private right to sue under 1 1983 because the statutes at issue did not construct frameworks for resolving individuals’ 2 complaints. See Wright, 479 U.S. at 427-28; Wilder, 496 U.S. at 521-23. 3 We conclude that Congress did not impliedly preclude private enforcement of the 4 Food Stamp Act’s time limits by granting enforcement powers to the Secretary of 5 Agriculture.1 And we therefore hold that the time limits for allocating food stamps provided 6 in 7 U.S.C. 2020(e)(3) and (9) are privately enforceable through lawsuits brought under 7 1983.2 8 B. Federal regulations do not excuse the DSS from processing food stamp 9 applications within the statutory time limits 10 11 Defendant argues that the preliminary injunction issued by the District Court 12 conflicts with a number of federal regulations. See, e.g., 7 C.F.R. 273.2(h) (establishing 13 procedures for situations where the State agency is at fault for not allocating food stamps 14 within 30 days of an application, and for situations where the applicant household is at fault 15 for not completing the eligibility determination process within 30 days); 7 C.F.R. 16 273.2(i)(3)(iv) (providing that if the initial screening for expedited (7-day) food stamp 17 eligibility fails to identify that a household is eligible, then the State agency is only required 18 to process the application within 7 days of the date it discovers that the household is eligible 19 1 If more were needed, we note that this conclusion is amply supported by the legislative history of the Food Stamp Act. See, e.g., H.R. Rep. No. 95-464, at 398 (1977), reprinted in 1977 U.S.C.C.A.N. 1978, 2327 ( The administrative remedies against the state contained in section 11(f) and elsewhere should not be construed as abrogating in any way private causes of action against states for failure to comply with Federal statutory or regulatory requirements. ). 2 This holding puts us in agreement with the Eleventh Circuit and the Fifth Circuit, which have both held that analogous statutory time limits in prior iterations of the Food Stamp Act were individually enforceable. See Gonzalez v. Pingree, 821 F.2d 1526 (11th Cir. 1987); Victorian v. Miller, 813 F.2d 718 (5th Cir. 1987) (en banc). 11 for expedited service). Defendant interprets these regulations as excusing the DSS from 1 having to follow the Food Stamp Act’s time limits. 2 In support of its reading of these regulations, Defendant argues that 7 U.S.C. 3 2020(e)(3) requires only that the DSS complete the certification of eligible households 4 within 30 days, and that eligibility need only be determined promptly. To make this 5 point, Defendant contrasts two statutory phrases. The first provides that the State agency 6 shall thereafter promptly determine the eligibility of each applicant household. The second 7 requires that the State agency must complete certification of and provide an allotment 8 retroactive to the period of application to any eligible household not later than thirty days 9 following its filing of an application. 7 U.S.C. 2020(e)(3). Defendant contends that while 10 the second phrase imposes a specific 30-day time limit as to eligible households, the DSS 11 need only determine the eligibility of non-eligible applicant households promptly 12 (rather than within any set time period). 13 The obvious problem with this interpretation is that there would be no way for the 14 DSS to complete certification and provide an allotment of food stamps to all eligible 15 households within 30 days of the filing of an application, as 7 U.S.C. 2020(e)(3) expressly 16 requires, if the DSS did not first determine not only promptly, but well within 30 days 17 which households are eligible and which are not. We therefore agree with the District 18 Court that both the eligibility determinations and the allotments must be made within 30 19 days. And, accordingly, there is no basis for Defendant’s interpretation of these regulations. 20 The regulations simply provide additional procedures in case something goes wrong 21 and a statutory deadline is missed. Regulations which anticipate that a State agency will 22 sometimes fail to meet statutory deadlines, and which provide food stamp applicants with 23 12 fallback procedures to deal with such situations, cannot be read to repeal those deadlines. 1 Such regulations supplement 7 U.S.C. 2020(e)(3) and (9); they do not override them. 2 Indeed, if the regulations did purport to repeal or limit the statutory time limits, they would 3 likely be ultra vires, for no agency regulation can overturn a clear statutory mandate. 4 5 III. CONCLUSION 6 For the foregoing reasons, we AFFIRM the judgment of the District Court. 7 ”

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” J. 1 DOUGLAS E. LUMISH (Bar No. 183863) [email protected] 2 BENJAMIN LISS (Bar No. 292420) [email protected] \u00b7 3 LATHAM & WATKINS LLP 140 Scott Drive 4 Menlo Park, CA 94025 Telephone: (650) 328-4600 5 Facsimile: (650) 463-2600 . 6 BENJAMIN PULLIAM\u00b7 (Bar No. 294628) [email protected] 7 LATHAM & WATKINS LLP 505 Montgomery Street, Suite 2000 8 San Francisco, CA 94111-6538 Telephone: (415) 391-0600 9 Facsimile: (415) 395-8095 10 HOPE NAKAMURA (BarNo. 126901) EMILY MELAHN (Bar No. 295836) 11 LEGAL AID SOCIETY OF SAN MATEO COUNTY 12 330 Twin Dolphin Dr., Suite 123 Redwood City,\u00b7 California 94065 13 Telephone: (650) 558-0915 Facsimile.: (650)517-8973 14 Attorneys for Petitioner 15 RONALD C. BROOKS 16 F I L E D Superior Court of California County of San Francisco \u00b7 APR 2 3 2015 BY:~L~~F ~~RT Deputy Clerk 17 18 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANC’rSCO 19 ) RONALD C. BROOKS, 20 21 22 v. Petitioner, WILL LIGHTBOURNE, Director, California 23 Department of Social Services; CALIFORNIADEPARTMENT OF SOCIAL 24. SERViCES, . 25 26 27 28 Respondents. CASE NO. CPF-14-513757 JAIL [PR:9J’IQSI!!D] ORDER DIRECTING ISSUANCE WRIT OFADMINISTRA TIVE MANDAMUS PURSUANT TO COJ)E CIV. PROC. 1094.5 . ‘ . Date: April23, 2015 Time: 9:30 a.m. Dept.: 302 J..IADnl n llAHN Judge: Hon. EPa~~ Reservation: 121914-01 Action Filed: July 14,2014 {PROf’68E~ ‘ORDER 1 Petitioner Ronald Brooks’ Petition for a Writ of Administrative Mandamus was set ford hearing 2 on April23, 2015, at 9:30a.m., in Department 302 of the above-entitled court. 3 Having considered the petition, the administrative record lodged\u00b7 with this Court, the 4 memoranda in support of and opposition to the petition, and the oral arguments presented at the 5 hearing on this motion: 6 The court GRANTS the petition for a writ of administrative mandamus. 7 While the notice provisions of W & I code section 11450.04 aie ambiguous and can fairly 8 be construed to support the positions advocated by both sides, the deference accorded to an 9 agency’s interpretation. \u00b7of statutory language, the context of the statutory language, and 10 furtherance of the purposes of section 11450.04 all indicate that the interpretation advocated by.\u00b7 11 respondents-that notice given to Diaz suffices as notice to petitioner-is the more r~asonable 12 one. This is particularly true since, per petitioner’s interpretation, had he received proper notic,e, 13 his son could permissibly be designated an MFG as to petitioner’s AU, yet there is no reasonable 14 way for notice to have been provided to petitioner other than by giving notice to petitioner. 15 The hearsay rule in the Administrative Procedure Act (Govt. Code section 11513(d)) 16 relied on by petitioner does not apply to the hearing held in this case due to W & I code sections 17 10953 and 10955 (see also Govt. Code section 11501 ). However, per W & I code section 10955 18 and MPP section 22-.050, the hearing was governed by the requirements that \”all testimony sht}l,l 19 be submitted under oath or affirmation\” and \”evidence shall be admitted if it is the sort .of . \”.-t 20 evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, .. :: 21 Applying the independent judgment standard of review, there was insufficient evidence to 22 support the finding of the ALJ-adopted by and necessary to the Department’s decision dep.yif1g 23 petitioner’s request for benefits for his son-that the r~quired notice was given to Diaz about the 24 MFG rules. This is because the only even conceivably probative evidence about notice to Diaz 25 of the MFG rules were the unsworn statements of Mr. Gomez that Diaz’s file showed that such 26 notice was given. \u00b7Mr. Gomez stated that he reviewed Diaz’s file, yet he chose not to introducie 27 any portion of that. file into evidence and refused to di~close it to \u00b7petitioner. (See MPP section 28 22-049 (petitioner was entitled to”Examine all documentsprior to and during the hearing.”).) [P~POse>] ORqER .. ;. (\\ 1 Regardless of the merits of Mr. Gomez’s assertion of confidentiality of the Diaz file, the absen6ci ‘ 2 of any evidence from that file disCloses that the ~’evidence\” that was provided by Mr. Gomez fell 3 below \”the sort of evidence on which responsible persons are accustomed to rely in the conduct 4 of serious affairs.\” 5 NOW THEREFORE the Department of Social Services is ordered to reverse its decision 6 of July 17, 2013 and remove the MFG designation from petitioner’s son for alltime periods, past 7 and present; while he is in the custody of petitioner and provide benefits withheld from petitioner 8 because of the MFG designation of his son. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS SO ORDERED, ADJUDGED, AND DECREED. ~? Dated: April)'(, 2015 Hofl:. Bmest II. GeiGsmith Judge of the Superior Court lf~V). \/~rc?fct l<~~~ '\u00b7 .. \u00b7\u00b7\u00b7 [~.POSEB] ORDER 2 "

pdf Camacho v Allenby Final Judgement WtW SIP case

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Camacho v. Allenby – Final Judgement – WtW SIP case (1).pdf

pdf Camacho v. Allenby – Final Judgement – WtW SIP case

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Camacho v. Allenby – Final Judgement – WtW SIP case.pdf

” SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES DATE: 04\/07\/08 DEPT. 85 HONORABLE JAMES C . CHALFANT JUDGE A. FAJARDO DEPUTY CLERK HONORABLE #3 J. DE LUNA, C.A. JUDGE PRO TEM Deputy Sheriff NONE 9:30 am BS104207 Plaintiff Counsel WENDY CAMACHO vs CLIFF ALLENBY ET AL NATURE OF PROCEEDINGS: VANESSA LEE Western Center on Law & Poverty 3701 Wilshire Blvd., Ste 208 Los Angeles, Ca 90010 GREGORY CRIBBS Deputy Attorney General 300 s. Spring St., Ste 1702 Los Angeles, Ca 90013 YOLAND ARIAS Defendant Counsel Legal Aid Foundation of Los Angeles 5228 Whittier Blvd. Los Angeles, Ca 90022 Page 2 of 2 ELECTRONIC RECORDING MONITOR NO APPEARANCES DEPT. 85 Reporter MINUTES ENTERED 04\/07\/08 COUNTY CLERK SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES DATE, 04\/07\/08 DEPT. 85 HONORABLE JAMES C. CHALFANT JUDGE A. FAJARDO DEPUTY CLERK HONORABLE #3 JUDGE PRO TEM ELECTRONIC RECORDING MONITOR J. DE LUNA, C.A. 9:30 am BS104207 WENDY CAMACHO vs CLIFF ALLENBY ET AL NATURE OF PROCEEDINGS: Deputy Sheriff NONE Plaintiff Counsel Defendant Counsel NO APPEARANCES ORDER TO SHOW CAUSE RE: JUDGMENT AND WRIT Pursuant to the \”Judgment for Petitioner\” having been signed and filed this date, the above stated OSC is discharged and placed off calendar. CLERK’S CERTIFICATE OF MAILING\/ NOTICE OF ENTRY OF JUDGMENT I, the below named Executive Officer\/Clerk of the above-entitled court, do hereby certify that I am not a party to the cause herein, and that this date I served Notice of Entry of Judgment of 4\/7\/08 upon each party or counsel named below by depositing in the United States mail at the courthouse in Los Angeles, California, one copy of the original entered herein in a separate sealed envelope for each, addressed as shown below with the postage thereon fully prepaid. Date: 4\/7\/08 John A. Clarke, Executive Officer\/Clerk By: Page 1 of 2 DEPT. 85 Reporter MINUTES ENTERED 04\/07\/08 COUNTY CLERK 1 WESTERN CENTER ON LAW & POVERTY, lNC. VANESSA LEE, SBN 216219 2 DORA LUNA, SBN 187970 3701 Wilshire Boulevard, Suite 208 3 Los Angeles, CA 90010 4 Telephone: (213)487-7211 Facsunile: (213) 487-0242 [email protected] LEGAL AID FOUNDATION OF LOS ANGELES 6 YOLANDA ARIAS, SBN 130025 5228 Whittier Boulevard 7 Los Angeles, California 90022 8 Telephone: (213) 640-3923 Facsimile: (213) 640-3911 [email protected] 9 ORIGINAL FILED APR O 7 2008 LOS ANGELE& SUPERIOR COURT 10 11 12 1N THE SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES 13 WENDY CAMACHO, 14 Petitioner, 15 v. 16 CLIFF ALLENBY, Director, California 17 Department of Social Services, and DEPARTMENT OF SOCIAL SERVICES, 18 19 20 Respondents \ufffd Case No.: BS104207 ) [Pft!Clf8!!flBJ JUDGMENT FOR PETITIONER Date: April 7, 2008 .Time: 9:30 a.m. Dept: 85 Judge: James C. Chalfant Petition Filed: July 17, 2006 21 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that: 22 23 1. 2. Judgment is hereby granted for petitioner; A peremptory writ of mandate shall issue, commanding respondents John Wagner 24 and California Department of Social Services, their successors in office, agents, and employees, 25 and all those acting at their direction or in combination with them, or subject to their authority 26 and control: 27 a. To issue an All-County Letter no later than 90 days after service of 28 judgment and peremptory writ of mandate upon respondents, directing counties: ,,, g1 !Hl)JUDGMENTFORPETITIONER (CAMACHO V. ALLEN BY – BS l 04207) 1 1. To reimburse Ca!WORKs recipients for all supportive services 2 necessary for participation in SIPs approved under Welfare and Institutions Code section 3 11325.23, including any expenses, for which they have an eligible, unreimbursed, out-of-pocket 4 cost, incurred prior to the signing of a welfare-to-work plan ne’,pd.. —- St!Pllii;;ti,\ufffd:;;;:-;Ord\ufffd\ufffd;;:;i\ufffdtt;;;:;;\ufffd\ufffd;;;;\ufffd;jj;jij;ijo;;=ct,;;:——-11 Stipulation for Order Awarding Attorney’s Fee,; [P p33 di Order Camacho v. Allenby judgment final [04-07-2008] WtW SIP case Camacho v. Allenbyh stip & order–Judge Chalfant signed 10-7-08 WtW SIP case ”

pdf Christopherson v McMahon

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pdf Christopherson v. McMahon – unpublished welfare equitable estoppel case.pdf

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Christopherson v. McMahon.pdf

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pdf Crary v. McMahon- WtW Transportation case.pdf

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Crary v. McMahon- WtW Transportation case.pdf

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pdf Deparini v. Bonta Consent Decree – Denti-Cal

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Deparini v. Bonta Consent Decree – Denti-Cal.pdf

” ORIGINAL\ufffd f\ufffd a f\ufffdD ii \ufffd \ufffd\u2794:-2 e \ufffd \ufffd GRACE GALLIGHER,# 106687 1 2 3 COALITION OF CALIFORNIA WELFARE RIGHTS ORGANIZATl-JNSJg\\ 1 1901 Alhambra Boulevard. Second Floor \u00b7 \u00b7 i 3 ,\u00b7, \u00b7\”‘ ‘i’) L\ufffd._\u00b7 :.. Sacramento, California 95 816 Telephone: (916) 736-0616 4 EUGENIE DENISE MITCHELL,# 95601 BESS M. BREWER, #100364 5 BREWER & MITCHELL, LLP 1023 H Street. Suite B5 6 Sacramento. California 95814 Telephone: (916) 448-8600 7 Facsimile: (916) 448-8605 8 KATHERINE MOTTARELLA, #173702 PROTECTION & ADVOCACY 9 520 East.Montecito Street Santa Barbara, CA 93103 10 Telephone: (805) 884-7218 \ufffdtcr Plaintiffs CLE’:=K IJ \ufffd- CiST!;ICT COURT !;A\ufffdTErW OISin:C r CF CALIFORNIA 4 2001 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIF\” )RNIA 17 18 19 20 21 22 23 24 25 26 ,, \”\”7 ,t..\/ 28 GLYNDA DEPARINI and LIDIY A POLISHCHUK, individually and on behalf of all similarly situated persons, Plaintiffs, V. DIANA BONT A, Director, California Department of Health Services, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CIV-S-0J.655 FCD\/Jr\u25c4 M ORDER APPRO VfNG CLASS ACTION SETTtEMENT AND ENTERING CO:\ufffdSENT DECREE Class Action Order Approving Class Action Settlement and Entering Consent Deere,-\ufffd 1 The Court, having considered the memorandum of plaintiffs Glynda Deparini and Lidiya 2 Polishchuk, having reviewed the parties’ Stipulation for Entry of Consent Decree ( .. Stipulation .. ). and 3 finding that the terms of the Stipulation are fair. reasonable and adequate for the absent class m\ufffdmbcrs. 4 HEREBY ORDERS that: 5 6 I. 2. The Stipulation entered into among the parties in th is case is hereby APPROVED: The Stipulation for Entry of Consent Decree attached hereto as Exhibit A is 7 hereby entered as a Consent Decree, and the terms of the Stipulation are hereby incorporated hy 8 reference as if fully set forth herein; 9 3. The Court shall retain jurisdiction to enforce compliance by the parties with the 1 O terms of the Consent Decree and the instant Order; and 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ‘)7 L, I 28 4. Notwithstanding the time limits set forth in Lo\ufffdal Rules 54-292 and 54-293. plaintiffs may move for a determination of the amount of an award of reasonable attorneys\u00b7 fees and costs within 120 days after the date of entry of this order. IT IS SO ORDERED. DATED: \ufffd4-2-tftrl::2–i r . . 2 Order Approving Class Action Settlement and Entering Consent DecrCl! \u00a3X HIBi\/ A 1 GRACE GALLIGHER, # 106687 ORIGINAL COALITION OF CALIFORNIA WELFARE RIGHTS ORGANIZA TI\u00b7 )NS 2 1901 Alhambra Boulevard, Second Floor Sacramento, California 95816 3 Telephone: (916) 736-0616 4 EUGENIE DENISE MITCHELL,# 95601 BESS M. BREWER, #100364 5 BREWER & MITCHELL, LLP I 023 H Street, Suite B5 6 Sacramento. California 95814 Telephone: (916) 448-8600 7 Facsimile: (916) 448-8605 8 KATHERINE MOTTARELLA, #173702 PROTECTION & ADVOCACY 9 520 East Montecito Street Santa Barbara, CA 93 I 03 10 Telephone: (805) 884-7218 11 Attorneys for Plaintiffs 12 13 14 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 15 16 GLYNDA DEP ARINI and 17 LIDIY A POLISHCHUK, individually and on behalf of all 18 similarly situated persons, 19 Plaintiffs, 20 v. 21 DIANA BONTA, Director, California Department of Health 22 Services., 23 Defendant. 24 \”‘\ufffd kJ 26 ‘)’7 t..l 28 Stipulation for Entry of Consent Decree ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CIV-S-00-655 FCD\/JFM STIPULATION I ‘OR ENTRY OF CONSENT DECREE Class Action 1 INTRODUCTION 2 WHEREAS the parties to this case desire to resolve this matter without fu11her litigation. they 3 have met and conferred. and with the assistance of the Court, have agred to the follO\\ving terms of this 4 Stipulation C’Stipulation\”) for Entry of Consent Decree: 5 6 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HISTORY OF THE CASE 1. This is a civil rights action brought under 42 U .S.C. 1 qg3 and 28 U .S.C. *\ufffd 1201 and 2202 to require the director of the California Department of Health Sei-vices (\”\”OHS\” or \u00b7\u00b7defendant\”‘) to comply with federal Medicaid law and the United States and Califo \u00b7nia Constitutions in notifying Medi-Cal beneficiaries when OHS denies requested dental services to these beneficiari,\ufffds. 2. Plaintiffs Glynda Deparini and Lidiya Polishchuk. who are themselves Medi-Cal recipients, filed their complaint on March 27, 2000, as a class action,:, 1 behalf of themselves and on behalf of similarly situated Medi-Cal beneficiaries. 3. In their complaint, plaintiffs challenged the adequacy of )! IS’s standard notices for the denial of dental services in two main respects: 1) failure to specify th: reasons for the denial of the requested services; and 2) failure to cite any relevant legal authority for the denials. Plaintiffs alleged that these inadequacies violated the due process rights of plaintiffs and the! plaintiff class as secured by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. the federal Medicaid Act and regulations at 42 U.S.C. 1396a(a)(3) and 42 C.F.R. } 431.2 10 and the Due Process Clause in Article I, 7 of the California Constitution. Plaintiffs sought prospective preliminary and permanent injunctions requiring adequate notices, retrospective notice -:elief, and declaratory relief 4. On April 4, 2000, plaintiffs filed motions for class certification and preliminary injunction, which were subsequently continued and finally taken of f calendar in view of ongoing settlement negotiations. 5. In addition to having conducted their own settlement meetings. the parties sought and obtained the assistance of the Court and conducted three settlement meet i \u00b71gs under the Court\u00b7 s auspices. 2 Stipulation for Entry of Consent Decree PARTIES 2 6 . The parties in this case and to this Stipulation are Glynda Deparin i and Lid iya 3 Polishchuk, on behalf of themselves and all others similar]y situated ( \u00b7\u00b7plaintiffs:\u00b7 .. the pla int if f c lass . . 4 and\/or \”class members\”), and Diana Bonta, in her official capacity as Director of the Cal i fornia 5 Department of Health Services (\”‘DHS\” or ‘\u00b7defendant\”) . 6 7 . The rel ief afforded as a result of the Consent Decree en ( .. ;!red upon th is Sti pulat ion wi l l 7 benefit and bind the plaintiff class defined as follows: 8 AH Medi-Cal recipients who have requested or wi11 reque\u00b7:,t authorization 9 for dental services under the Medi-Cal program and who have been 1 O denied at any time since March 27, 1 999. or will be denied. authorization 1 1 for any such service(s). 1 2 8 . Defendant and her contractors (specifically including her fi scal intem1ed iary( ies) for the 1 3 Denti-Cal program), agents, employees, assigns, successors in interest. . ird al l others acting in concert 14 with any of them shall be bound by the terms of this Stipulation and the ( \u00b7 onsent Decree entered upon 15 it. Those bound pursuant to this paragraph are collectively referred to in ‘.1 1s Stipulation as \u00b7\u00b7defendant\”\” 16 and\/or \”OHS.\” 17 JURISDICTION 1 8 1 9 20 2 1 9. 10. Jurisdiction is conferred pursuant to 28 U .S.C. 1 33 1 . 1 343(3) and ( 4 ). and 1 367 . PROSPECTIVE RELIEF Beginning no later than December 19, 200 1 , DHS shal ; thenceforth not ify Med i-Cal 22 beneficiaries of the denial ofMedi-Cal authorization for requested denta:: services by using the language 23 and format of Beneficiary Treatment Authorization Request (TAR) Nodce and the Reason for Action 24 Codes sheets which are attached as Exhibits 1 and 2, respectively. to thi s Stipulation and incorporated 25 by this reference. For each service denied, the Beneficiary TAR Notice \ufffd;hal l reference one of the forty- 26 six l isted Reason for Action Codes, which shall in turn refer to the exp !Pnations specified in Exh ibit 2 . 27 DHS retains the discretion to designate more than one Reason for Acion by code or otherwise. In 28 notifying beneficiaries, DHS shall use the language contained in Exhibits l and 2. which the parties have Stipulation for Entry of Consent Decree expressly negotiated and agreed upon. In choosing the Reason for Acti l n Code to use for each serv ice 2 denial in each notice, DHS shall use the most specific appl icable Re .tson for Act ion Code. This 3 Stipulation only addresses adequacy of notice to class members and do :\ufffd- not preclude a chal lenge on 4 any other basis. 5 1 1 . In each notice, DHS shall specify the statutory and regu ]mo 11\u00b7 authority on which i t rel ies 6 for the specific denial . The following language as it appears on Exhib: 1 shal l be suffic ient for DI IS 7 to comply with its obl igation under this paragraph: 8 Denti-Cal has processed your dentisfs request for yo . tr treatment in 9 accordance with Title 22, California Code of Regula . inns, Sections 1 0 5095 1 , 5 1 0 1 4. 1 and 5 1 0 1 4.2 and the Manual of Criteria. \/’L1 least one of 1 1 the items cannot be approved or requires modification. Please refer to 1 2 the enclosed list for an explanation o f the REASON .. ;OR ACTION 1 3 CODE{S) l isted. In addition. specific, minimum requi \ufffd e.ments can be 1 4 found in the Denti-Cal Provider Manual, under Sec \ufffdfon 4 entitled 1 5 \”MANUAL OF CRITERIA\” under the specific Pro,! . \u00b7dure Number 1 6 listed below. A copy may be found at any Medi-Cal de 1t i sfs office. 1 7 In any instance, DHS may include a more specific reference to any statute ry or regulatory authority on 1 8 which it relies for a denial . 1 9 20 RETROACTIVE NOTICE RELIEF 21 1 2 . DHS shall provide retroactive notice relief to all class mer. 1hers whose requests for Medi- 22 Cal authorization for dental services were denied at any time during the \u00b7 Retroactive Period.\”. provided 23 that the basis for the denial was Reason Code 02, 06 or 08. The Retrorclive Period runs from March 24 27, 1 999, until the date DHS commences using the Beneficiary TAR Noti :..e format and the Reason for 25 Action Codes sheets pursuant to paragraph 1 0, above. In the interests of aJministrative final ity and the 26 avoidance of beneficiary confusion, and notwithstanding the foregoing language of this paragraph. OHS 27 shall not provide ietroactive notice relief to a class member who has previously requested an 28 administrative hearing regarding a denied dental procedure. 4 Stipulation for Entry of Consent Decree 1 2 3 4 5 6 7 8 9 10 1 1 1 2 1 3 14 15 16 1 7 1 8 1 9 20 21 22 23 24 25 26 2i 28 13. Retroactive notice relief consists of: a. Individual notice as provided in paragraphs 14 .md 1 5 , below. of the specific reasons among the forty-six Reason for Action Codes and their e>-planations ( set forth in Exhi bit 2) for OHS’ denial of requested dental services, and\/or posted r -o lice as set forth in paragraph 16\ufffd below\ufffd and b. By operation of law upon the prov1s1on of notice. reinstatement of the individual’s right to an administrative hearing to appeal the deniaL inc luding al! of attendant rights provided by law. 14. By December 191 2001 , DHS shall mail individual notics to al l class members whose requests for Medi-Cal authorization for dental services were denied at a 1y time during the Retroactive Period. To do so, OHS shall use these class members’ most recent add1 esses identified for an:y public program through the statewide MEDS computer system. OHS shal l pwvide plaintiffs’ counsel five days’ advance notice of the commencement of the mailing of the i ndividual retroactive not ices . Notwithstanding the foregoing language of this paragraph, OHS shal l ni:, \u00b7 mail notice to a class member with respect to any denied dental service about which the class memb \ufffd \u00b7r has previously requested an administrative hearing. 15 . In the individual mailed notices, DHS shall use the larguage contained i n the Retro Stuffer Notice, which is attached as Exhibit 3 to this Stipulation and incorporated by this reference. The parties have expressly negotiated and agreed upon the language contain\ufffdLo1 1 8 Dated: 1 9 20 t\/rl>\/41 21 Dated: 22 23 24 25 26 27 28 Stipulation for Entry of Consent Decree COALITION OF CALIFORNJA WELFARE RIGHTS ORGANIZATIONS BREWER & MITCHELL. LLP PROTECTION & ADVOCACY, INC. \ufffd By: a.1..ic )Uu_!Sl0UA.U1… __ l}u .. \ufffd It GENIE DENISE MITCHELL Attorneys for Plaintiffs , _ ,f kl }N,-:\ufffdL fry’ DI\ufffd _M. BONTA, Director \u00b7 Cahfornia Department of Health Services 1 1 Defendant BILL LOCKYER, Attorney General of the State of Cal ifornia FRANK FURTEK. Supervising Deputy Attorney General Final Stipulation for Enif} of Consent Decree with 9- 1 2-0 1 Changcs.wpd SXHtBIT I NOTICE DATE: NOTICE OF DENTI-CAL ACTION THIS IS NOT A BILL BILLIE MELTON 1 23 FOURTH STREET SACRAMENTO, CA 9412 1 MEDS ID: DCN: MRDCN: Dentist: BLUE RIVER FAMILY DENT AL 730 SUNRISE A VE STE 1 20 ROSEVILLE, CA 95661 9 16) 1 23-4567 PAGE OF DATE OF REQUEST: Denti-Cal has processed your dentist’s request for your treatment in accordance with Title 22, Califor\u00b5ia_9_ode of Regulations, Sections 5 1003, 5 1 3071 and the M\ufffdual of Criteria. At least one of Hie items cannot be approved or requires modification. _ Please refer to the attached lisf for an explanation of the REASON FOR ACTION CODE(S) listed. In addition, specific, minimum requirements can be found in the Denti-Cal Provider Manual, under Section 4 entitled \”MANUAL OF CRITERIA\” under the specific Procedure Number listed below. A copy of the manual may be fo\ufffdnd at any Medi-Cal Dentist’s office. Tooth .# Treatment Procedure Denti-Cal Reason for or Arch Description . Number Action Action Code(s) 14 Root Canal, Molar 5 1 3 Approved 1 2 Root Canal, Molar 5 13 R Modified 03 1 2 Root Canal, Bicuspid 5 12 s Approved Gum Treatment 452 Deferred 08 L Full Lower Denture 701 Deferred 07 03 Complete Metal Crown 660 Denied 10 You can discuss alternative treatment plans with your dentist to obtain the best care allowable under the Denti-Cal program If you have a question regarding this action, please contact your dentist or Denti-Cal at 1 -800-322- 6384 for a more detailed explanation. If vou are dissatisfied with the action described on this notice, you may request a state hearing within 90 days from the date of the notice (see back of this form). IF YOU ARE DISSAT1sFIED WITH THE ACTION DESCRIBED ON THIS NOTICE, YOU MAY REQUEST A STATE HEARING WITHIN 90 DAYS FROM THE NOTICE DATE . To Request a Hearing: Send this entire notice to: Office of the Chief Administrative Law Judge State Department of Social Services Post Office Box 1 3 1 89 Sacramento, CA 958 1 3-3 1 89 OR You may call the TOLL-FREE number at the Public Inquiry and Response Unit. 1 -800-952-5253 (ASSISTANCE AVAILABLE IN LANGUAGES OTHER THAN ENGLISH) State Regulations : A c\ufffdpy of Title 22, California Code of Regulations, Sections 5095 1 , 5 1 0 14. i , and 5 1 O 14.2, which covers state hearings, is available at your county social services office or local library. Authorized Representative: You can represent yourself at the hearing or you can be represented by a friend, lawyer or any other perso_n. You are expected to arrange for the representative yourself. You can get help in locating free legal assistance by calling the toll-free number of the Public Inquiry and Response Unit or from your local social services office. t::=\ufffdI I WILL NEED A TRANSLATOR (at no cost. to me). MY LANGUAGE OR DIALECT IS : ___________ _ REASON FOR ACTION CODES 0 1 Your aid code covers emergency services only. 02 Information submitted by your dentist about your current dental condition does not meet our minimum requirements for approval of this service. 03 The request for dental treatment marked with an \”R\” was changed to the procedure marked with an \”S\” . This change was based on the information submitted by your dentist concerning your current dental condition or on Program guidelines. 04 Denti-Cal records show this service(s) or a similar service(s) was previously authorized, paid for, or was completed. (For example: In some cases, procedures are limited to once in 12 months or once in five (5) years and cannot be authorized again except under special circumstances, which must be documented by your dentist.) 05 We are unable to verify your dentist ‘s enrollment to participate in the Denti-Cal Program on L11e date the request was submitted. 06 The service as requested by your dentist, IS NOT A BENEFIT OF THE DENTI-CAL PROGRAM. Please contact your dentist for a different treatment plan. 07 You did not appear for a scheduled regional screening examination or failed to bring existing denture(s) (full or partial) . Please contact your dentist to resubmit a request for this procedure . 08 Your dentist did not submit enough information to allow us to process this request. Please contact your dentist to resubmit a request with new information. 09 X-rays show that the tooth does not meet the requirements for a crown. At least 5 1 % of the tooth must be missing and\/or decayed. The tooth may be restored with a filling. 10 X-rays show that the tooth\/teeth may have an infection; please contact your dentist as another service may be needed first. 1 1 Based on x-rays and\/or your dentist’s charting and confirmed by information we received from our regional screening examination, you do not have s\u00b5fficient gum disease to need a deep scaling. 12 This service cannot be authorized because it is related to a denied procedure in the same treatment plan submitted by your dentist. 1 3 Based on the information submitted by your dentist and\/or received from a regional screening examination, your current dental condition is stable and the requested service is not needed at this time . 14 Based on x-rays and\/or confirmed by information we received from a regional screening examination, Denti-Cal has determined that the tooth\/teeth has worn down naturally or you have bruxism (teeth grinding). Crowns are not a benefit of the Denti-Cal Program to restore teeth worn down naturally or by bruxism or that do not have decay or have not fractured. 1 5 X-rays show the tooth is too broken down and cannot be repaired . Your dentist may be able to provide a different treatment. 16 Denti-Cal records show that the tooth has been restored with an acceptable ftlling or stainless steel crown. 1 7 X-rays show the service requested cannot be approved because gum disease has destroyed the bone around the tooth. Your dentist may be able to recommend a different treatment. 18 The minimum requirements for orthodontic treatment couid not be verified by the Handicapping Labial-Lingual Deviation Index or submitted study models. 19 A partial denture can be a benefit oniy when there is a full denture on the opposite arch. 20 Root canal treatment must be satisfactorily completed before a crown can be considered. 2 1 Tooth is not fully developed . Your dentist may be able to recommend a different treatment . 22 Treatment is not necessar cause neither x-rays nor documen n supports that there is nerve damage. 23 A stayplate can be a benefit only to replace a missing permanent front tooth. 24 X-rays show that additional extractions are necessary before the treatment plan can be approved; please contact your dentist. 25 Based on the information submitted by your dentist, your teeth are in such a poor condition that the requested service is not a benefit under the Denti-Cal Program. 26 Based on the information submitted by your dentist, your teeth are stable at this time and should not be replaced by a full denture. 27 Based on the information submitted by your dentist, you have no opposing full denture; therefore, you do not qualify for a partial denture. However, if you are missing front teeth, you qualify for a stayplate. 28 Based on x-rays and\/or your dentist’s charting, and confirmed by information we received from our regional screening examination, your teeth and\/or gums are in such poor condition that the requested treatment is not a benefit under the Denti-Cal Program. Your dentist may be able: to recommend a different treatment. 29 Deep sca!Lt1g is not a benefit for patients under 1 8 years of age, except for cases where medications have caused the overgrowth of gum tissue. 30 Fixed bridges are allowable when severe epilepsy, paraplegia or uncontrollable spasticity prevents the use of a removable denture. 3 1 Tooth is not in its normal position and cannot be repaired under the Denti-Cal Program. 32 Based on information received from a regional screening examination, your existing denture is satisfactory at this time. 33 Based on information received from a regional screening examination, it has been determined that you cannot adapt to a denture because of physical limitations or health conditions. 34 The requested service is not necessary because there are enough teeth remaining in this arch to support the opposing denture. 3 5 During your regional screening examination, you indicated you do not want extractions or any other dental services at this time. 36 The number of authorized visits has been adjusted because you will turn 21 years of age before treatment is completed. Please make arrangements with your dentist. 37 The tooth is not visible on the submitted x-rays. 38 Based on x-rays\u00b7 and\/or confirmed by information we received from our regional screening examination, you need additional treatment from your dentist before the procedure can be considered. 39 X-rays show there is not enough space present for the requested false tooth. 40 The Denti-Cal Program does not cover orthodontics when there are still baby teeth present. 4 1 Based on x-rays and\/or confirmed by information we received from our regional screening examination, Denti-Cal has determined that you have bruxism (teeth grinding) . The treatment of bruxism is not a benefit of the Denti-Cal Program. 42 The procedure is not a benefit for a baby tooth. Your dentist may be able to recommend a different treatment for your condition. 43 The procedure requested will not correct your dental problem. Your dentist may be able to recommend a different treatment for your condition. 44 Based on information received from your dentist, Denti-Cal has determined that the :requested service is for cosmetic reasons only. Services for cosmetic purposes only are not a benefit of the Denti-Cal Program. 45 Your current denture can be made satisfactory by a laboratory reline. 46 We are unable to verify you:r eligibility in the Den ti-Cal Program. EX rh BIT 3 Denti-Cal California Medi-Cal Dental Program ATTENTION Our records show that authorization was denied for Medi-Cal dental procedure(s) that were requested by a Denti-Cal dentist for you between March 27 , 1 999 and ——–[date of implementation] . Please refer to the enclosed Notice of Denti-Cal Action . When you were orig inal ly notified about the denial , you were not g iven specific reasons for the denial , so you may not have understood the denial wel l enough to be able to decide what to do about it. The procedure(s) that were requested and denied at that t ime are l isted on the enclosed Notice of Denti-Cal Action with specific reason(s) for their denial . You have a right to a hearing if you d isagree with the action described i n the enclosed notice or think your treatment is medical ly necessary. You have 90 days form the Notice Date to appeal the denial . The Notice Date is on the enclosed Notice of Denti-Cal Action . If you do not want to\u00b7 appeal the denial(s), you do not need to do anything further. If you wish to appeal , please see the back of the Notice of Denti-Cal Action about how to request a hearing . If you appeal and the Date of Request on the enclosed Notice of Denti-Cal Action was before [six months before the date of the notice] and you have not had the procedure performed , you wi l l need to have a Denti-Cal dentist submit a new Treatment Authorization Request. P .O . Box 1 5539 Sacramento, CA 95852-1 539 (800) 322-6384 To al l persons who were denied dental services u nder Med i-Cal at any time since March 27, 1 999 Med i-Cal has changed the notices it sends to beneficiaries when a dentist submits a Treatment Authorization Request (TAR) for dental services but Medi-Cal denies the TAR. The new notices g ive beneficiaries more specific reasons for the den ials of dental services . Medi-Cal is sending new notices to everyone who had a TAR denial for denta l services at any time s ince March 27, 1 999. These persons received the old \u00b7 notices and may not have understood them wel l enough to be able to decide what to do about them. The new notices g ive more specific reasons for the TAR denials for dental services , so that beneficiaries can decide whether to appeal the denials. The new notices start over again the time al lowed for these persons to appea l . If you receive or have received a new notice about Medi-Cal ‘s den ial of TAR’s for denta i services, please fol low the i nstructions enciosed with that new notice. The rest of th is poster is for persons who have not received a 11ew notice – even though Medi-Cal denied them denta l services at some time sinc9 March 27, 1 999. If Med i-Cal denied you any dental services since March 27, 1 999, but you have not received a new notice about the denial , you can get a new notic.e . The notice you got when the dental service was first denied may not have been specific enough for you to be able to decide what to do about the denia l . The new notice wil l g ive you a more specific reason why Medi-Cal denied the dental service your dentist requested for you . Then you can decide whether to appeal the den ia l . The new notice wil l start over again the time al lowed for you to appeal the denial . To get a new notice to help you decide whether to appeal Medi-Cal’s denial of dental services , cal l Medi-Cal at the fol lowing number: 1 -(B0Q) .. 322-6384 The cal i is free. Ask for a new notice about the dental services Medi-Cal denied you . You have unti l ———=\ufffd to ask for a new notice . I F YOU CAN’T READ THIS NOTICE, ASK YOUR COUNTY MEDI-CAL WORKER FOR A TRANSLATION (CAM) IF YOU CAN’T READ THIS NOTICE, ASK YOUR COUNTY MEDI-CAL WORKER FOR A TRANSLATION (CHN) IF YOU CAN’T READ TH IS NOTICE, ASK YOUR COUNTY MEDI-CAL WORKER FOR A TRANSLATION (VIET) IF YOU CAN’T READ THIS NOTICE, ASK YOUR COUNTY MEDI-CAL WORKER FOR A TRANSLATION (RUSS) Deparini v . Bonta United S tates District Court for the Eastern District of Cali fornia January 3 , 2 0 0 2 * * CERTIFICATE O F SERVICE * * 2 : 0 0 – cv- 0 0 6 5 5 daw I , the unders igned , hereby certi fy that I am an employee in the Off ice of the Clerk , U . S . Di strict Court , Eastern District of Cal i fornia . That on January 3 , 2 0 0 2 , I SERVED a true and correct copy ( ies ) of the attache d , by placing said copy ( ies ) in a postage pai d envelope addres sed to the person ( s ) here inafter l is ted , by depo s i t ing said envel ope in the U . S . Mai l , by plac ing said copy ( ies ) into an inter- of fice del ivery receptacle located in the Clerk ‘ s off ice , or , pursuant to prior authori zat ion by counsel , via fac s imile . Grace A Gal l igher CF\/JFM Coalition of California Wel fare Rights Organi zat ions 1 9 0 1 Alhambra Boulevard Second Floor Sacramento , CA 9 5 8 16 Eugenie Denise Mitche l l Brewer and Mitche l l 1 0 2 3 H Street Suite BS Sacramento , CA 9 5 8 14 Katherine Marie Mottarel la Protection and Advocacy Tri – Count ies Regional Center 5 2 0 Eas t Montecito Street Santa Barbara , CA 9 3 1 0 3 Darryl Franci s Mans f ield Attorney General ‘ s Off ice PO Box 944 2 5 5 13 0 0 I S tree t Suite 1 2 5 Sacramento ; CA 94 244 – 2 5 5 0 Jack L. Wagner, Clerk \ufffd \\ \\,\ufffd\/’ ‘l&\\i\\.L , , ‘ ,\\ by: naj)hl)7C1erk 1 BILL LOCKYER, Attorney General of the State of California 2 FRANKS. FURTEK (SBN 109310) Lead Supervising Deputy Attorney General 3 DARRYL F. MANSFIELD (SBN 95469) Deputy Attorney General 4 1300 \”I\” Street, Suite 125 Post Office Box 944255 5 Sacramento, California 94244-2550 Telephone: (916) 323-8789 6 Facsimile: (916) 327-2319 FILED MAR – 2 s\u00b7 ,!002 CLERK U.S. DISTRICT COURT EASTERN ‘olSTRICT OF CALIFORNIA 3′———– 0EPUTY CL RII. 7 Attef\u00a5\”or DIANA BONTA’, Director L Q r,Health Services \ufffd- R ? C\u00b7 2002. CLE\ufffdI 9. DISTA 1CT COURT EACTERN UI TR\ufffd\ufffdTj.,OF CAL:FO.-;NIA IIV ( – – UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 12 13 14 15 -‘ 16 <( 17 Si:'&,,. -\ufffd' \ufffd\"J..'\u00aba 18 \ufffd{)ilt,. _\u00b7 19 20 . c\ufffd 21 0 22 23 24 25 26 27 28 t\ufffdA DEP ARINI and LIDIY A POLISHCHUK on behalf of themselves and others similarly situated, Plaintiffs, V. DIANA BONTA', in her official capacity as Director, California Department of Health Services, l Defendant. ---- No. CIV. S-00 655 FCD JFM STIPULATION TO REMEDY PROBLEMS IN IMPLEMENTATION OF CONSENT DECREE WHEREAS the parties, through their counsel, having met and conferred, and desiring to remedy problems in the implementation of the Consent Decree herein, state as follows: The Consent Decree requires that defendant (\"the Department\" or \"DHS\") provide retroactive notice relief to all class members whose requests for Medi-Cal authorization of dental services were denied at any time from March 27, 1999 until December 19, 2001 (the \"Retroactive Period\"), Order Approving Class Action Settlement and Entering Consent Decree (Jan. 3\ufffd 2002), Exhibit A, Stipulation for Entry of Consent Decree (\"Consent Decree\"), ,r,r 12-16; Problem with English Version of Notice Poster The Consent Decree mandates the language of posted public notices for the notification of class members for whom the Department did not have addresses current at the time of the mailing 1 STIPULATION TO REMEDY PROBLEMS IN IMPLE\ufffd\ufffdATION OF CONSENT DECREE 6b 1 of individual notices on December 19, 2001, id., 1 16 and Exhibit 4, Poster, and specifies that the 2 Department provide the poster to identified sites by December 19, 200 I with instructions that the 3 poster remain posted for a period of ninety (90) days, thus allowing class members a ninety (90)- 4 day period to contact the Department for pursuit of retroactive relief coincident with the time 5 limitation for requesting hearings set forth in the individual mailed notices; 6 The Department provided posters to the requisite sites by December 19, 2001, and 7 instructed that they be posted for an additional thirty (30) days beyond those required under the 8 Consent Decree, thereby allowing putative class members an additional thirty (30) days - that is, 9 until April 19, 2002 - to respond to the poster in pursuit of the retroactive relief provided under 1 0 the settlement; 11 However, through the inadvertence of one of the Department's agents\/contractors, the 12 English version of the poster varied in several respects from, and omitted one full paragraph of, 13 the poster text required under paragraph 16 and Exhibit 4 of the Consent Decree; 14 To correct this problem, the Department, by January 19, 2002, produced and provided to 15 each of the sites required under paragraph 16 of the Consent Decree, a replacement English- 16 language poster which uses the language set forth in Exhibit 4 to the Consent Decree, and 17 specified in the poster that the time limit for a class member to contact the Department to pursue 18 retroactive reliefremained April 19, 2002, ninety (90) days after the correction; 19 Problem with the Implementation of Individual Mailed Retroactive Notice to Class Members 20 The Consent Decree mandates that by December 19, 2001 the Department mail individual 21 retroactive notices to all class members whose requests for Medi-Cal authorization for dental 22 services were denied at any time during the Retroactive Period, Consent Decree, ,r14, and requires 23 that this notice include an individualized document in the format of the Beneficiary TAR Notice 24 incorporated as Exhibit 1 to the Consent Decree, setting forth a new Reason for Action Code for 25 each of that class member's previously denied services, id., ,r 15.b.; 26 By December 19, 2001, the Department mailed individual retroactive notices to 27 approximately 650,000 class members pursuai91t to paragraph 14 of the Consent Decree; 28 However, after the mailing was completed, the Department discovered that due to an error STIPULATION TO REMEDY PROBLEMS IN IMPLEMENTATION OF CONSENT DECREE 1 of its agent, over 60% of these individual mailed notices did not set forth the new Reason for 2 Action Codes specific to the class members' previously denied services as required by paragraph 3 15.b. of the Consent Decree, see Declaration of Robert P. Pierson, Chief, Office of Medi-Cal 4 Dental Services, Exhibit 9, attached; 5 Problem with Hearing Requests on Stale T ARs 6 The Consent Decree additionally mandates the language of a Retro Stuffer Notice required 7 to be included in the individual, mailed retroactive notice, id., 115 and Exhibit 3, Retro Stuffer 8 Notice, and in so doing specifies that if a class member appeals the denial of a treatment 9 authorization request for a dental service originally denied between March 27, 1999 and June 19, 10 2001 (in other words, all but the last six months of the Retroactive Period), and the class member 11 has \"not had the procedure performed, [ the class member] will need to have a Denti-Cal dentist 12 submit a new Treatment Authorization Request,\" id.; 13 The term \"treatment authorization request,\" or \"TAR.,\" refers to a health care provider's 14 formal request for the Department to authorize a particular treatment or service for a Medi-Cal 15 beneficiary, see 22 Cal. Code of Regs. 51003; and for the purpose of previously denied dental 16 services reflected on the individual retroactive notices mailed to class members by December 19, 17 2001, the term \"stale TAR\" refers to a TAR on behalf of a class member for a dental service 18 originally denied between March 27, 1999 and June 19, 2001 (all but the last six months of the 19 Retroactive Period); 20 Defendant's provision ofretroactive notice pursuant to the Consent Decree reinstates each 21 class member's right to an administrative hearing to appeal the TAR denial, including all 22 attendant rights provided by law, id., 113b; 23 As of March 6, 2002, the Department had received over five hundred seventy (570) 24 requests for hearing involving stale TAR's; however, without information from individual class 25 members, the Department does not have and is unable to devise any system to distinguish hearing 26 requests where the class member has not received the subject dental service thus triggering the 27 need for a new TAR, from hearing requests where the class member has received the subject 28 dental service, id.; STIPULATION TO REMEDY PROBLEMS IN IMPLEMENTATION OF CONSENT DECREE \u00b7 1 For the Department to allow a class member, before his or her hearing is scheduled, a 2 reasonable time after the hearing request to cure any stale TAR would routinely consume more 3 than ninety (90) days; yet, the Department is required by law to take prompt, definitive and final 4 action within 90 days of a request for hearing, 42 C.F.R. 43 l.244(f); see also 42 U.S.C. 5 1398a(a)(8) and (a)(3); 6 In addition, pursuant to an unpublished Order in Ball v. Swoap, Alameda County Superior 7 Court No. H105716-0, (December 4, 1987), att\ufffdched as Exhibit 10, the Department must render a 8 decision within ninety (90) days of a request for hearing, or face possible penalties; 9 WHEREFOR, the parties agree and stipulate as follows: 10 Extension of Retroactive Notice Period on Posters 11 1. The Department shall issue an instruction letter or postcard to all county welfare 12 departments, public health agencies, Denti-Cal biiling provider offices, and legal aid offices as 13 specified in paragraph 16 of the Consent Decree immediately to extend the date on the English 14 and Spanish posters to August 15, 2002, by affixing a colored sticker, provided by the 15 Department with the letter or postcard, over the April 19, 2002 date. 16 Issuance of New Retroactive Notices to all Affected Class Members 17 2. By May 15, 2002, DRS shall mail new individual retroactive notices to all living 18 class members identified pursuant to paragraph 12 of the Consent Decree, except for those class 19 members who have requested hearings by April 19, 2002. The content of the retroactive notice 20 shall be as provided in the Consent Decree, except that the Retro Stuffer Notice shall be provided 21 in the revised form and content set forth in Exhibit 11 (two-sided \"OOPS Notice\"), attached 22 hereto; 23 3. The Department may treat any hearing requested after April 19, 2002 as made 24 pursuant to the May 15, 2002 notice and as pertinent to a stale TAR. Any hearing requested after 25 April 19, 2002 and treated as pertinent to a stale TAR shall be subject to the Procedures for 26 Hearing Requests on Stale TARs set forth in paragraphs 4-10 below. 2 7 Procedures for Hearing Reguests on Stale T ARs 28 4. The Department may uphold the denial of a class member's stale TAR without 4 STIPULATION TO REMEDY PROBLEMS IN IMPLEMENTATION OF CONSENT DECREE 1 providing an administrative hearing and may dismiss on its merits the class member's request for 2 hearing pursuant to the retroactive notice relief afforded under the Consent Decree if and only if 3 both of the circumstances set forth in a. and b. below occur: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 a. Within ten (10) working days of the Department's receipt of a class member's hearing request on a stale TAR, the Department notifies the class member that the denial of his or her TAR will be upheld and the request for hearing dismissed on its merits unless the class member either: 1. provides to the Department, within ninety (90) days of the date of such notice, additional information to indicate that the class member has received the previously denied dental service from a Medi-Cal dental service provider by May 20, 2002; or 11. engages a Medi-Cai dentist who within ninety (90) days of the date of such notice submits to the Department a new TAR on the class member's behalf. The Department shall authorize an initial dental examination (Procedure Code No. 010) for any class member who requests a hearing and has not received the dental service at issue but who is no longer eligible for Medi-Cal. b. The Department provides such notice to the class member in writing using the language and form of notice set forth in Exhibit 12, which is attached hereto and incorporated by reference herein (\"Stale TAR Letter\"). 5. Where within ten (10) working days of the Department's receipt of a class 21 member's hearing request on a stale TAR, the Department notifies the class member according to 22 the content and form of notice set forth in paragraph 4 above, the time period within which the 23 Department is otherwise required by law to render a hearing decision shall not commence until 24 either the date the Department receives a new TAR, or the date the Department receives additional 25 information to indicate that the class member has already received the previously denied service 26 in accord with the requirements set forth in paragraph 4, whichever occurs first. 27 6. Where by the ninety-fifth (95th) day after having notified a class member in accord 28 with paragraph 4, above, the Department has received neither a new TAR nor additional 5 STIPULATION TO REMEDY PROBLEMS IN IMPLEMENTATION OF CONSENT DECREE 1 information to indicate that the class member has already received the previously denied service 2 according to the requirements set forth in paragraph 4.a. i . , the Department may uphold the denial 3 of the stale TAR without hearing and dismiss the request for hearing on its merits. 4 Notwithstanding the foregoing, the Department shall extend for a reasonable time a class 5 member's ninety (90)-day time period described in paragraph 4 where the Department authorizes 6 an initial dental examination pursuant to that paragraph, and may extend the time period for 7 reasonable time where a class member requests an extension. 8 7. Where the Department upholds the denial of the stale TAR without a hearing and 9 dismisses the request for hearing on its merits under the circumstances set forth in paragraphs 4 1 O and 6, the Department shall provide written notice to the class member that: 11 12 13 14 a. the denial of the stale TAR has been upheld and the hearing request dismissed on its merits; b. the action constitutes the final decision of the agency; and C. pursuant to California Welfare and Institutions Code section 10962, the 15 class member has a right to pursue the matter by appropriate petition for writ of mandate 16 filed in the Superior Court of California within one year of receipt of the agency 's final 1 7 decision. 18 The Department shall use the content and form of the Dismissal Decision set forth in Exhibit 13 19 attached hereto and incorporated by reference herein, for the purpose of the provision of notice 20 pursuant to this paragraph. 21 8. Where within ten (10) working days of the Department's receipt of a class 22 member 's hearing request on a stale TAR, the Department notifies the class member according to 23 the content and form of notice set forth in paragraph 4 above, and thereafter determines to 24 authorize the service requested , whether based on additional information submitted or based on a 25 new TAR or for another reason, the Department shall promptly so notify the class member. The 26 Department shall use the content and form of the Authorization Letter set forth in Exhibit 1 4 27 attached hereto and incorporated by reference herein, for the purpose of the provision of notice 28 pursuant to this paragraph of the authorization of a requested service; where the Department does STIPULATION TO REMEDY PROBLEMS IN IMPLEMENTATION OF CONSENT DECREE 1 so, the class member's hearing request as to the denial of that service shall be moot and may be 2 canceled without further notice to the class member. 3 9. Where within ten (1 0) working days of the Department's receipt of a class 4 member 's hearing request on a stale TAR, the Department notifies the class member according to 5 the content and form of notice set forth in paragraph 4 above, and thereafter determines to deny 6 authorization of the service requested, whether based on additional information submitted or 7 based on a new TAR or for another reason, the Department shall: 8 9 10 11 12 1 3 14 a. Use the content and form of notice set forth in Exhibits 1 (Beneficiary TAR Notice) and 2 (Reason for Action Codes) to the Consent Decree, thereby to notify the class member in writing of the Department's decision with respect to the additional information submitted and\/or the new TAR; and b. Thereupon ensure that an administrative hearing is promptly scheduled for the class member. 10. With respect to any request for hearing on a stale TAR which the Department has 15 received before the date this Stipulation is approved by the Court, the ten (10)-working-day period 16 set forth in subparagraph 4.a. shall commence on the date this Stipulation is approved by the 17 Court. 18 11. Where an administrative hearing is scheduled or takes place, the Department shall 19 conduct the hearing and all processes associated with it, including notification of the decision, in a 20 manner which comports with applicable law. If the hearing occurs following denial and\/or 21 modification of a requisite new TAR, the subject of the hearing will be the new TAR, rather than 22 the stale TAR. In a case where the class member alleges that he or she has already received the 23 service, evidence that the class member has received and has incurred a cost for the previously 24 denied dental service from a Medi-Cal dental service provider by May 20, 2002, must be 25 presented at the administrative hearing. 26 I l l 27 I I I 28 I I I STIPULATION TO REMEDY PROBLEMS IN IMPLEMENTATION OF CONSENT DECREE 1 12. On or before April 1 9, 2002, the Department shall send to all Denti-Cal billing 2 provider offices a copy of the Denti-Cal bulletin containing the language set forth in Exhibit 15. 3 1 3 . Within thirty (30) days of the commencement of the mailing of individual 4 retroactive notices to class members pursuant to paragraph 4, DHS shall serve on plaintiffs' 5 counsel a preliminary report, including a summary of any instructions to the dental fiscal 6 intermediary regarding implementation of any of the provisions of this Stipulation; and specifying 7 at a minimum the total number of individual retroactive notices mailed and the number of sites to 8 which DHS provided stickers to amend posted notices. In addition, DHS shall sample the notices 9 mailed pursuant to paragraph 4 by faxing to plaintiffs' counsel on a daily basis three randomly 10 selected notices from each day's run of such notices. 1 1 1 4. In any judicial proceeding concerning any administrative hearing decision 12 pertaining to any notice provided by this Stipulation, the parties, including all absent class 13 members, shall retain all claims and defenses otherwise available. 14 I l l 15 I l l 16 I l l 17 I l l 1 8 I l l 19 I l l 20 I l l 21 I l l 22 I l l 23 I l l 24 I l l 25 I l l 26 I l l 27 I l l 28 I l l 8 STIPULATION TO REMEDY PROBLEMS IN IMPLEMENTATION OF CONSENT DECREE 1 1 5 . This Stipulation to Remedy Problems in Implementation of Consent Decree i s the 2 product of mutual negotiations and is deemed to have been drafted by both plaintiffs and 3 defendant. 4 5 6 7 8 9 10 1 1 12 1 3 14 15 16 17 1 8 19 20 21 22 23 24 25 26 27 28 1 6 . The Court may enter an order consistent with the foregoing. So Stipulated and Agreed: ( _ _ _ Dated. \/} , L) .\ufffd \/ i- L- cl , A1:.1… 1 l . \\ >,;.’. . L –\ufffd; ) l . \ufffd – \u00b7r: ( 1, l._ ‘— –CL. J:;UGENIE DENISE MITCHELL Anomey for Plaintiffs BILL LOCKYER, Attorney General of the State of California FRANK S. FURTEK Lead Supervising Deputy Attorney General {\ufffd\ufffd\ufffd\ufffd\ufffd Deputy Attorney General Attorneys for Defendant Diana Bonta The Department of Health Services c.\/ ‘ – \u00b7, ) –. . J_;,:J .- )Lt,\ufffd Vl \u00b7_ G .. \ufffdGOLIS, . ;_\/ Deputy Duector, Medical Care Services The on ab F. MOULDS, Up:1.tes States Magistrate Judge STIPULATION TO REMEDY PROBLEMS IN IMPLEMENTATION OF CONSENT DECREE Deparini v . Bonta United S tates District Court for the Eastern District of Cali fornia January 3 , 2 0 0 2 * * CERTIFICATE O F SERVICE * * 2 : 0 0 – cv- 0 0 6 5 5 daw I , the unders igned , hereby certi fy that I am an employee in the Off ice of the Clerk ; U . S . District Court , Eastern Dis trict of Cal i fornia . That on January 3 , 2 0 0 2 , I SERVED a true and correct copy ( ies } of the attached ! by placing said copy ( ies ) in a postage paid envelope addres sed to the person ( s ) hereinafter l i s ted , by depositing said envelope in the U . S . Mai l , by placing said copy ( ies } into an inter-off ice delivery receptacle located in the Clerk ‘ s of f ice , or , pursuant to prior authori zation by counsel , via fac s imi le . Grace A Gal l igher CF\/JFM Coalition of Cal i fornia Wel fare Rights Organi zat ions 1 9 0 1 Alhambra Boulevard Second Floor Sacramento , CA 9 5 8 1 6 Eugenie Denise Mitchell Brewer and Mitchell 1023 H Stree t Suite B S Sacramento , CA 9 5 8 14 Katherine Marie Mottarella Protection and Advocacy Tri – Counties Regional Cente r 52 0 East Montecito Street Santa Barbara , CA 9 3 1 0 3 Darryl Franci s Mans f ield Attorney General ‘ s Off ice PO Box 944 2 5 5 13 0 0 I Street Suite 1 2 5 Sacramento : CA 9 4 2 4 4 – 2 5 5 0 Jack L. Wagner, Clerk _\\Jt’,AlM( . I J ‘ LA \ufffd \\ ”\\ it\ufffd\” \/ by: DefmcyClerk O R I G I NAL\ufffd f \”‘ tl f\ufffd D i ti! \ufffd,.. -!’.-.I e \ufffd \ufffd GRACE GALLIGHER, # 1 06687 1 2 3 COALITION OF CALIFORNIA WELFARE RIGHTS ORGANIZA Tl -)NSJk \ufffd ! 1 90 1 Alhambra Boulevard, Second Floor \u00b7 \u00b7 \u00b7 Sacramento, California 958 1 6 Telephone: (9 1 6) 736-06 1 6 4 EUGENIE DENISE MITCHELL, # 9560 1 BESS M. BREWER, # 1 00364 5 BREWER & MITCHELL, LLP 1 023 H Street. Suite B5 6 Sacramento, California 958 1 4 Telephone: (9 1 6) 448-8600 7 Facsimile: (9 1 6) 448-8605 8 KA.THERINE MOTTARELLA, # i 73702 PROTECTION & ADVOCACY 9 520 East .Montecito Street Santa Barbara, CA 93 1 03 I O Telephone: (805) 884-72 1 8 \ufffdt:cr Plaintiffs CLE=K IJ \ufffd – C i STH ICT COURT E=A.3TErW D ISi n :c r cF CALIFORNIA IN THE UNITED STATES DISTRICT COU RT 1 7 1 8 1 9 20 2 1 22 23 24 ,.,, .,_, 26 27 28 FOR THE EASTERN DISTRICT OF CALI F JRNIA GLYNDA DEP ARINI and LIDIY A POLISHCHUK, individually and on behalf of all similarly situated persons, Plaintiffs, V. DIANA BONT A, Director, California Department of Health Services, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CIV-S-0 .)- 655 FCD\/JFM ORDER APPRO VING CLASS ACTION SETTt E MENT AND ENTERING CO:\ufffdSENT DECREE Class Action ———————– \u00b7———- Order Approving Class Action Settlement and Entering Consent Deere, .: 1 The Court, having considered the memorandum of plaintiffs Glynda Deparini and Lidiya 2 Polishchuk, having reviewed the parties’ Stipulation for Entry of Consent Decree c\u00b7stipulation .. ). and 3 finding that the terms of the Stipulation are fair. reasonable and adequate for the absent c lass members. 4 HEREBY ORDERS that: 5 6 I . 2 . The Stipulation entered into among the parties in th is case is hereby APPROVED: The Stipulation for Entry of Consent Decree at tached hereto as Exh ib it A is 7 hereby entered as a Consent Decree, and the terms of the Stipulation are hereby incorporated by 8 reference as if fully set forth herein; 9 3 . The Court shall retain jurisdiction to enforce compl iance by the parties with the 1 O terms of the Consent Decree and the instant Order; and 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 2 1 22 23 24 26 27 28 4. Notwithstanding the time l imits set forth in Lo\ufffda1 Rules 54-292 and 54-293 . plaintiffs may move for a determination of the amount of an award of reasonabie attorneys \u00b7 fees and costs within 1 20 days after the date of entry of this order. IT IS SO ORDERED . DATED : 4=2-; J-\/t1 ,:,._ 1 r . . 2 Order Approving Class Action Settlement and Entering Consent Deere(\ufffd Deprini – Order & Consent Decree SKMBT_C22017012412561 ”

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pdf Hall v USDA, 2021 – Settlement of Pandemic SNAP benefits

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Hall v. USDA – Settlement – Pandemic SNAP benefits.pdf

” 1 Hall v. USDA SETTLEMENT AGREEMENT This Settlement Agreement is entered between Plaintiffs Robin Hall and Steven Summers (collectively, Plaintiffs ) and Defendants U.S. Department of Agriculture and Thomas J. Vilsack in his official capacity as Secretary of Agriculture (collectively, Defendants or USDA ), parties to Hall v. U.S. Department of Agriculture, No. 20-cv-03454-HSG (N.D. Cal.), No. 20-16232 (9th Cir.) ( the Action ). RECITALS 1. On March 18, 2020, Congress enacted the Families First Coronavirus Response Act. Pub. L. No. 116-127, 134 Stat. 178. Section 2302(a)(1) of that Act provided that, in the event of qualifying State and federal public-health emergency declarations, the Secretary of Agriculture: shall provide, at the request of a State agency . . . that provides sufficient data (as determined by the Secretary through guidance) supporting such request, for emergency allotments to households participating in the supplemental nutrition assistance program under the Food and Nutrition Act of 2008 to address temporary food needs not greater than the applicable maximum monthly allotment for the household size[.] 2. On March 20, 2020, USDA issued guidance to State agencies administering the Supplemental Nutrition Assistance Program (SNAP), permitting emergency allotments that would bring all households up to the maximum benefit due to pandemic related economic conditions. 3. On March 25, 2020, California’s SNAP-administering agency, the Department of Social Services, submitted a request to provide emergency allotments to all SNAP households in the amount of $60 per person. This request was not approved by USDA because it was not aligned with the Emergency Allotment guidance. 4. On March 27, 2020, the California Department of Social Services submitted a revised request for emergency allotments to raise each household’s regular monthly SNAP allotment to the maximum allowable allotment based on household size. This revised request was approved by USDA and has been renewed each month to the present. 5. On April 21, 2020, USDA issued additional guidance to State SNAP- administering agencies, providing that [a] household’s [emergency allotment] cannot increase the current monthly household SNAP benefit allotment beyond ‘the applicable maximum monthly allotment for the household size.’ Accordingly, SNAP households that already receive the maximum monthly allotment for their household size are not eligible for [emergency allotments]. 2 6. On May 21, 2020, Plaintiffs filed the Complaint in the U.S. District Court for the Northern District of California on behalf of a putative class of SNAP recipients in California deemed eligible to receive the regular maximum monthly SNAP allotment for their household size ( maximum allotment households ). The Complaint alleges that USDA violated the Administrative Procedure Act by exceeding its statutory authority in adopting an interpretation of section 2302(a)(1) that is (1) contrary to law, D. Ct. Dkt. No. 1 \u00b6\u00b6 64-72, and (2) arbitrary and capricious, id. \u00b6\u00b6 73-79. Plaintiffs sought an injunction prohibiting Defendants from denying any otherwise appropriate request from California under section 2302(a)(1) of the [FFCRA] because it provides emergency [SNAP] allotments to households receiving the maximum monthly benefit amount, in addition to declaratory relief. Id. at 18 (Prayer for Relief). Plaintiffs also moved for a preliminary injunction and class certification. D. Ct. Dkt. Nos. 5, 6. 7. On June 17, 2020, the district court issued an order denying a preliminary injunction. D. Ct. Dkt. No. 32. The parties filed cross-motions for summary judgment. D. Ct. Dkt. Nos. 45, 47, 49, 50. The district court heard oral argument on September 10, 2020 and ordered supplemental briefing. D. Ct. Dkt. Nos. 55, 56. The district court’s summary judgment order is pending. 8. Plaintiffs appealed the district court’s order denying a preliminary injunction. App. Dkt. No. 1. On December 31, 2020, a divided panel affirmed. Hall v. USDA, 984 F.3d 825, 830-42 (9th Cir. 2020). 9. On January 22, 2021, President Joseph R. Biden, Jr., issued the Executive Order on Economic Relief Related to the COVID-19 Pandemic. The Executive Order directs [a]ll executive departments and agencies to promptly identify actions they can take within existing authorities to address the current economic crisis resulting from the pandemic. White House, Executive Order on Economic Relief Related to the COVID-19 Pandemic (Jan. 22, 2021), https:\/\/www.whitehouse.gov\/briefing-room\/presidential-actions\/2021\/01\/22\/executive-order- economic-relief-related-to-the-covid-19-pandemic\/. 10. On January 22, 2021, the White House issued a fact sheet to accompany the Executive Order, which specifically addressed emergency SNAP allotments. The fact sheet states, So far, those benefit increases have not been made available to all of the lowest income households. USDA will consider issuing new guidance that would allow states to increase SNAP emergency allotments for those who need it most. The fact sheet described this as the first step to ensuring that an additional 12 million people get enhanced SNAP benefits to keep nutritious food on the table. White House, Fact Sheet: President Biden’s New Executive Actions Deliver Economic Relief for American Families and Businesses Amid the COVID-19 Crises (Jan. 22, 2021), https:\/\/www.whitehouse.gov\/briefing-room\/statements- releases\/2021\/01\/22\/fact-sheet-president-bidens-new-executive-actions-deliver-economic-relief- for-american-families-and-businesses-amid-the-covid-19-crises\/. 11. On January 22, 2021, the parties jointly moved the district court for a 30-day stay of proceedings on the parties’ pending cross-motions for summary judgment. D. Ct. Dkt. No. 58. The district court granted that motion, D. Ct. Dkt. No. 59, and later extended the stay for an https:\/\/www.whitehouse.gov\/briefing-room\/presidential-actions\/2021\/01\/22\/executive-order-economic-relief-related-to-the-covid-19-pandemic\/ https:\/\/www.whitehouse.gov\/briefing-room\/presidential-actions\/2021\/01\/22\/executive-order-economic-relief-related-to-the-covid-19-pandemic\/ https:\/\/www.whitehouse.gov\/briefing-room\/statements-releases\/2021\/01\/22\/fact-sheet-president-bidens-new-executive-actions-deliver-economic-relief-for-american-families-and-businesses-amid-the-covid-19-crises\/ https:\/\/www.whitehouse.gov\/briefing-room\/statements-releases\/2021\/01\/22\/fact-sheet-president-bidens-new-executive-actions-deliver-economic-relief-for-american-families-and-businesses-amid-the-covid-19-crises\/ https:\/\/www.whitehouse.gov\/briefing-room\/statements-releases\/2021\/01\/22\/fact-sheet-president-bidens-new-executive-actions-deliver-economic-relief-for-american-families-and-businesses-amid-the-covid-19-crises\/ 3 additional 30 days (to and including March 26, 2021) following a second joint motion to that effect, see D. Ct. Dkt. Nos. 60 (joint motion), 61 (order extending stay). 12. On March 8, 2021, the Ninth Circuit issued an order stating that [a] judge of this court has called for a vote to determine whether this case will be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a), and requesting simultaneous briefs from the parties on whether the case should be reheard en banc, to be filed on March 29, 2021. App. Dkt. No. 37. The parties jointly requested a 30-day extension of this filing deadline (to and including April 28, 2021), App. Dkt. No. 38, which the court granted. 13. The Parties now desire to settle all claims and causes of action arising out of and related to the circumstances alleged in the Complaint, as set forth in this Agreement. AGREEMENT In consideration of the Recitals above, the Parties agree as follows: A. Defendants will cease enforcement of the March 20, 2020 guidance ( Request to Provide Emergency Allotments (Supplements) to SNAP Households ) and April 21, 2020 guidance ( Month-To-Month Contingent Approval to Continue Issuing Supplemental Nutrition Assistance Program (SNAP) Emergency Allotments (EA) Benefits under the Families First Coronavirus Response Act of 2020 ) as to California as of the date this Agreement is fully executed. B. Defendants will issue updated guidance for Emergency Allotments to SNAP Households ( Updated Guidance ) applicable to California within ten days of the date this Agreement is fully executed. C. In accordance with USDA’s determination that it is appropriate to allow states to provide SNAP emergency allotments to the lowest income households, USDA’s Updated Guidance will provide for emergency allotments to be available to all SNAP households, including those receiving the regular maximum monthly SNAP allotment for their household size. The specific replacement guidance to be issued will be determined by Defendants. D. Within two days of the date that the Agreement is fully executed, Plaintiffs will file the Notice of Dismissal attached as Exhibit A, dismissing the Action with prejudice. By entering this Agreement, and agreeing to dismissal with prejudice, Plaintiffs withdraw with prejudice and forego any and all claims for injunctive relief identified in Plaintiffs’ Complaint. E. After dismissal of this Action, Defendants will pay to Plaintiffs’ counsel the amount of $125,000 as attorneys’ fees in connection with the prosecution of the Action. Defendants will complete this payment within sixty days of the date that the Agreement is fully executed. 4 E.1. Plaintiffs hereby fully and forever release and discharge Defendants, the United States, any department, agency, or establishment of the United States and their present or former officials, employees, successors, and agents, in their official and individual capacities, from any and all rights or claims for attorneys’ fees and other litigation expenses that have been, or could have been, made as a result of the Action. Without limiting the generality of the foregoing, this release encompasses, resolves, and satisfies all claims for attorneys’ fees and other litigation expenses in connection with all facets of the Equal Access to Justice Act, from the initial submission of Plaintiffs’ Complaint and including any litigation, as well as any other proceedings involving claims or causes of action that were or could have been raised in the Action. E.2 Plaintiffs and Plaintiffs’ counsel assume liability for any tax consequences that may arise from this Agreement. Compliance with all applicable federal, state, and local tax requirements shall be the sole responsibility of Plaintiffs and Plaintiffs’ counsel. This Agreement is executed without reliance upon any representation by Defendants as to tax consequences, and Plaintiffs and Plaintiffs’ counsel are responsible for the payment of all taxes that may be associated with the settlement payments. Further, nothing in this Agreement waives or modifies federal, state, or local law pertaining to taxes, offsets, levies, and liens that may apply to this Agreement or the settlement proceeds, and this Agreement is executed without reliance on any representation by Defendants as to the application of any such law. F. Other than the attorneys’ fees payment described in Paragraph E, the Parties will bear their own fees and costs. G. This Agreement is not intended to be and shall not be deemed an admission by any party of the merit or lack of merit of an opposing party’s claims or defenses. Without limiting the generality of the foregoing, this Agreement does not constitute, and shall not be construed as, an admission of liability or fault on the part of the Defendants or the United States or their present or former officials, employees, or agents, or as an admission of any contested fact alleged by Plaintiffs. This Agreement may not be used as evidence or otherwise in any civil or administrative action or proceeding against Defendants or the United States or any of their present or former officials, employees or agents, either in their official or individual capacities, except for proceedings necessary to implement or enforce its terms. This Agreement shall not be used in any manner to establish liability for fees, amounts, or hourly rates in any other case or proceeding. H. The Agreement, including exhibits, constitutes a single, integrated written contract and describes the entire agreement of the Parties resolving this matter. I. The Agreement may be executed in counterparts, all of which together shall constitute a single, unified document. J. In any claim to construe the terms of the Agreement, this Agreement shall be considered the product of negotiation by and among the parties hereto. No clause or provision 5 shall be interpreted more strongly in favor or against one party of the other, based upon the source of the draftsmanship, but shall be interpreted in a neutral manner. K. Each signatory to this Agreement represents and warrants that he, she, or it is fully authorized to enter into this Agreement on behalf of the persons or entities indicated below, and has done so freely and voluntarily, without any degree of duress or compulsion. This Agreement is effective when executed by all of the undersigned. AGREED AND ACCEPTED: FOR PLAINTIFFS: DATE: Robin Hall Plaintiff DATE: Steven Summers Plaintiff DATE: Lindsay Nako Impact Fund DATE: Richard A. Rothschild Western Center on Law & Poverty FOR DEFENDANTS: DATE: Rachael Westmoreland Trial Attorney United States Department of Justice Exhibit A Page 1 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Alexander Prieto (SBN 270864) Richard Rothschild (SBN 67356) Antionette D. Dozier (SBN 244437) Rebecca Miller (SBN 317405) WESTERN CENTER ON LAW & POVERTY 3701 Wilshire Blvd., Suite 208 Los Angeles, CA 90010-2826 Tel: (213) 487-7211 Fax: (213) 487-0242 [email protected] [email protected] [email protected] [email protected] Lindsay Nako (SBN 239090) Jocelyn D. Larkin (SBN 110817) David S. Nahmias (SBN 324097) IMPACT FUND 2080 Addison Street, Suite 5 Berkeley, CA 94704-1693 Tel: (510) 845-3473 Fax: (510) 845-3654 [email protected] [email protected] [email protected] Counsel for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ROBIN HALL and STEVEN SUMMERS, individually and on behalf of all others similarly situated, Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE and THOMAS J. VILSACK, in his official capacity as United States Secretary of Agriculture, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 4:20-cv-03454-HSG Hon. Haywood S. Gilliam, Jr. STIPULATION OF DISMISSAL BRIAN M. BOYNTON Acting Assistant Attorney General ERIC WOMACK Assistant Branch Director Rachael L. Westmoreland (GA Bar No. 539498) UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION FEDERAL PROGRAMS BRANCH 1100 L St., NW Washington, DC 20005 Tel: (202) 514-1280 Fax: (202) 616-8470 [email protected] Counsel for Defendants Page 2 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), Plaintiffs Robin Hall and Steven Summers, and Defendants United States Department of Agriculture and Thomas J. Vilsack, in his official capacity as Secretary of Agriculture, by and through their undersigned counsel, hereby stipulate to the dismissal of this case with prejudice, pursuant to the terms of a settlement agreement reached by the parties. Dated: ________, 2021 Respectfully submitted, BRIAN M. BOYNTON \/s\/ Acting Assistant Attorney General Lindsay Nako IMPACT FUND ERIC WOMACK Assistant Branch Director Alexander Prieto WESTERN CENTER ON \/s\/ LAW & POVERTY Rachael L. Westmoreland Trial Attorney Federal Programs Branch Page 3 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ATTESTATION OF SIGNATURES I, Lindsay Nako, hereby attest, pursuant to Local Civil Rule 5-1(i)(3) of the Northern District of California, that concurrence in the filing of this document has been obtained from each signatory hereto. \/s\/ Lindsay Nako IMPACT FUND Counsel for Plaintiffs ”

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” 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- STIPULATED JUDGMENT GARY W. RHOADES, SB # 166149 LEGAL SERVICES OF NORTHERN CALIFORNIA 1370 West Street Redding, CA 96001 Telephone: (530) 241-3565 Facsimile: (530) 241-3982 GARY F. SMITH, SB #137534 LEGAL SERVICE OF NORTHERN CALIFORNIA 517 12 Streetth Sacramento CA 95814 Telephone: (916) 551-2110 Attorneys for Petitioners IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SACRAMENTO NORMA KEHRER, Case No: 99 CS 02320 Petitioner, STIPULATED JUDGMENT AND ORDER vs. Hearing Date: RITA SAENZ, DIRECTOR, Hearing Time: DEPT. OF SOCIAL SERVICES, Department: 1 STATE OF CALIFORNIA Respondents. \/ RECITAL 1. Petitioner, Norma Kehrer, filed this petition for writ of mandate and complaint for declaratory and injunctive relief to challenge the Department of Social Services’ hearing decision No. 9215369, and to challenge the alleged policy of Respondents, Rita Saenz and the Department of Social Services. Petitioner is represented by Gary Rhoades and Gary Smith of Legal Services of Northern California. Respondent is represented by Margarita Altamirano, Deputy Attorney General. 2. The parties freely enter into this Stipulation in order to resolve this action without further 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- STIPULATED JUDGMENT litigation and without admission by either party of fault or liability. AGREEMENT The Petitioner and the Respondents hereby agree and stipulate to the following terms: 1. Respondent will immediately repeal current MPP section 44-314.62; 2. In place of MPP 44-314.62, Respondent will immediately promulgate a new regulation which mirrors the language of subdivision (e) of Welfare and Institutions Code section 11450.04, and also defines child support payments for a Maximum Family Grant ( MFG ) child to include cash child support payments from the absent parent whether paid through the District Attorney’s office or directly to the MFG child or the custodial parent\/caregiver, and derivative benefits from the Social Security Administration or other government program due to the absent parent’s disability or retirement, which satisfy the absent parent’s child support obligation; 3. Respondent will immediately set aside of the Decision in Hearing No. 9215369, and issue of a new decision that orders Shasta County to restore the Assistance Unit’s ( AU ) benefits to the level in effect on July 30, 1998, if the AU is otherwise eligible for benefits, and will order payment of any retroactive benefits to the AU that it lost as a result of the Decision. 5. Each party shall bear its own attorney fees and costs incurred herein. 6. Judgment may be entered pursuant to this agreement in favor of petitioner and against respondent. Both parties request that the court retain jurisdiction over the parties to enforce the terms of the judgment. DATED: _______________________________________________ RITA SAENZ, Director, Department of Social Services, State of California DATED: _______________________________________________ MARGARITA ALTAMIRANO, Attorney for Respondent 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- STIPULATED JUDGMENT DATED: _______________________________________________ NORMA KEHRER, Petitioner DATED: GARY W. RHOADES, Attorney for Petitioner O R D E R GOOD CAUSE APPEARING, IT IS SO ORDERED. DATED: __________________________________ LLOYD CONNELLY C:\\Documents and Settings\\Steven Goldberg\\Local Settings\\Temp\\Kehrer_stip_judg.wpd Page 1 Page 2 Page 3 ”

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