DISTRICT OF COLUMBIA, et al., Plaintiffs, v. U.S. DEPARTMENT OF AGRICULTURE, et al., Defendants. BREAD FOR THE CITY, et al., Plaintiffs, v. U.S. DEPARTMENT OF AGRICULTURE, et al., Defendants.
Civil Action No. 20-119 (BAH)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
March 13, 2020
Chief Judge Beryl A. Howell
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 — and hunger‘s adverse effects on health, educational achievement, and housing security — 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
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
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.
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
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.”
USDA “is authorized to formulate and administer” SNAP,
States, including the District, also play a significant role in administering SNAP. See
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).”
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
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.”
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
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
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.”
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.
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.
USDA “received more than 100,000 comments” on the Proposed Rule.
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%.
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.
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.
The other three criteria listed in the 2001 regulation — 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 — were rejected as a group for inclusion in the Final Rule.
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
Second, commenters offered “analysis” and “research,”
“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.”
b. Redefinition of “area”
The 2001 regulation, which permits states to “define areas to be covered by waivers,”
In short, the Final Rule redefines “area in which the individuals reside,”
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.”
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.”
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.
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
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
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
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.
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.”
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
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,”
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
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
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.”
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
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 Commʼn 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
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
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.”
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).
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
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.”
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—that the Rule is contrary to law and was promulgated without observing procedural requirements—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.”
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
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.”
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,”
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
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,”
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.”
The Final Rule adopts unreasonably narrow criteria for implementing the statutory requirements for evaluating waivers. Start with the statutory structure: prong one of
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
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.
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
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.
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.”
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. 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.”
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
Third, USDA saw as “manipulative,”
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
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
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.
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. ¶ 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
The Final Rule alludes to the fact that commenters raised examples like the District and New York City, see
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.
* * *
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
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
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
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 “neither22
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. ¶ 10 (asserting that staff time and training will cost Minnesota at least $500,000); Fernández Decl. ¶¶ 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. ¶ 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. ¶¶ 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. ¶ 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. ¶ 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
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
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.,
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. ¶ 20 (Connecticut); see also Brown Decl. ¶ 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. ¶ 10 (describing the “case
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 ¶ 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. ¶ 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,
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.”
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
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
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. ¶ 16 (Pennsylvania); Fisher Decl. ¶¶ 9–10 (Nevada); Gifford Decl. ¶ 24 (Connecticut); Dawn Sweeney Decl. (“Sweeney Decl.“) ¶ 15, ECF No. 3-18 (Michigan); Zeilinger Decl. ¶ 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. ¶ 24 (anticipating that demand in Connecticut will increase tenfold). Connecticut estimates that right-sizing their E&T programs
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—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—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
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.“) ¶ 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
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. ¶¶ 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
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. ¶¶ 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. ¶ 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
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. ¶¶ 9, 11–13. BFC alleges that this resource diversion will necessarily impair other BFC programs advancing its mission, see id. ¶ 9, including its “systemic advocacy and fundraising efforts,” id. ¶ 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. ¶ 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, 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
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. ¶ 21; Tann Decl. ¶ 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. ¶ 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. ¶¶ 5, 9, 12. “[S]erious mobility issues” related to “a major accident in 2006,” however, prevent Smith from taking “regular employment in construction.” Id. ¶¶ 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. ¶ 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. ¶ 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,
Tann, who is 28 years-old, lives with her 95-year-old grandmother in the District. Tann Decl. ¶¶ 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. ¶ 6. Tann attended college for several semesters, but “withdrew for financial reasons.” Id. ¶ 4. Although Tann has been “actively searching for employment,” she has been “most[ly] unemployed” for the last two years. Id. ¶¶ 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. ¶¶ 7–9.
In her “efforts to find regular employment,” Tann says she has “encountered several barriers.” Id. ¶ 10. First, Tann “ha[s] been diagnosed with anxiety, depression, and ADHD,” which “interfere with” her “motivation” and “ability to focus.” Id. ¶ 11. Second, she “do[es] not have a car,” and therefore can only work in jobs accessible by public transit. Id. ¶ 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 — the [District‘s] Metro closes earlier than bars and restaurants close.” Id. ¶ 12. Third, Tann “pled guilty to two misdemeanors” in Virginia in 2018, for which she “was sentenced to 24 months of probation.” Id. ¶ 14. These convictions have caused companies to “rescind[] . . . offer[s]” of employment “after conducting a criminal background check.” Id. ¶ 16. In addition, her frequent “court-mandated appointments during business hours” have made it hard for her to maintain jobs. Id ¶ 17; id. ¶ 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.”).
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 — or at a minimum, their injury is not yet ripe for adjudication — 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
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 — lack of access to transportation, physical and mental conditions, and criminal convictions — 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. ¶¶ 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
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
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 — which USDA has used for 19 years — 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
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.
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,
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 — designed to protect these individuals from arbitrary terminations of their benefits and all Americans from agency action run amok — 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 — 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 F.3d 89, 97 (D.C. Cir. 2002)
The Supreme Court and other circuits have recognized the same principle: that “courts invalidate — without qualification — 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.
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.”
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
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” — 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, 712 F.2d 650, 651 (D.C. Cir. 1983)
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 — that is, vacatur 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
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
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.
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
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 — increased regulatory burdens, restrictions on the flexibility of states to address the needs of residents and loss of essential nutritional benefits — 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
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
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
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.”
The preceding discussion — of dozens of the countless federal cases ordering relief redressing injuries of non-plaintiffs — 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
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
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
An appropriate Order accompanies this Memorandum Opinion.
Date: March 13, 2020
BERYL A. HOWELL
Chief Judge
Notes
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“).
The state plaintiffs’ Medicaid argument is premised on the uncontested link between hunger and health. See Heather Heartline-Grafton Decl. (“Hartline-Grafton Decl.“) ¶ 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. ¶ 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