Summary
In Joseph, 505 F.Supp.3d at 979, the plaintiffs received a notice of a final decision of the FNS, which permanently disqualified them from the SNAP program, on February 18, 2020.
Summary of this case from Nephew Mini Mkt. v. United StatesOpinion
Case No. 20-cv-02955-JD
2020-12-07
Abdalla Faiz JOSEPH, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
Andrew Zachary Tapp, Metropolitan Law Group, PLLC, Brandon, FL, Zein E. Obagi, Jr., Obagi Law Group, P.C., Los Angeles, CA, for Plaintiffs. Benjamin Joseph Wolinsky, Jimmy Tuan Anh Doan, U.S. Attorney's Office Northern District of California, San Francisco, CA, for Defendant.
Andrew Zachary Tapp, Metropolitan Law Group, PLLC, Brandon, FL, Zein E. Obagi, Jr., Obagi Law Group, P.C., Los Angeles, CA, for Plaintiffs.
Benjamin Joseph Wolinsky, Jimmy Tuan Anh Doan, U.S. Attorney's Office Northern District of California, San Francisco, CA, for Defendant.
ORDER RE MOTION TO DISMISS AND EQUITABLE TOLLING
Re: Dkt. Nos. 7, 18
JAMES DONATO, United States District Judge A retail food store that "feels aggrieved" by a final agency determination disqualifying it from participation in the Supplemental Nutrition Assistance Program (SNAP) "may obtain judicial review thereof by filing a complaint against the United States ... within thirty days after the date of delivery or service of the final notice of determination." 7 U.S.C. § 2023(a)(13). Plaintiffs’ motion for equitable tolling, Dkt. No. 7, and the United States’ motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), Dkt. No. 18, raise the same question of statutory interpretation: may missing the 30-day deadline be excused, and if so, should it be in this case?
The Court heard oral argument on the motion to dismiss. Dkt. No. 31. The motion for equitable tolling was deemed suitable for decision without a hearing. Civil L.R. 7-1(b). Because the law, facts, and arguments for these motions overlap substantially, this Order disposes of both.
The salient facts are undisputed. As alleged in the complaint, plaintiff Save More Food Market (which plaintiffs call Sav More) is a San Francisco store owned by plaintiff Joseph. Dkt. No. 1 ¶ 1. The United States Department of Agriculture, the agency in charge of administering the SNAP program, permanently disqualified plaintiffs from participating in SNAP in September 2019. Dkt. No. 1 ¶ 6. The USDA concluded, on the basis of a "data analysis" of SNAP transactions at Sav More, that plaintiffs had engaged in the "trafficking" of SNAP benefits. Id. ¶¶ 30-32. Trafficking is defined in pertinent part as "buying, selling, stealing, or otherwise effecting an exchange of SNAP benefits" for cash or consideration other than eligible food purchases. 7 C.F.R. § 271.2.
Plaintiffs, who had no prior history of problems with SNAP, unsuccessfully contested the trafficking charge and filed a timely administrative appeal. Dkt. No. ¶¶ 4-8. The USDA denied the appeal and entered a Final Agency Decision (FAD) upholding the disqualification on February 18, 2020. Id. ¶ 9.
As Section 2023(a)(13) provides, plaintiffs had 30 days from the date of service or delivery of the FAD to file a complaint in the district court for judicial review. 7 U.S.C. § 2023(a)(13). Plaintiffs forthrightly acknowledge that they missed the deadline and filed the complaint in this Court more than 30 days after receiving the FAD. Dkt. No. 1 ¶ 10. The government says, without opposition, that plaintiffs were 36 days late. Dkt. No. 18 at 5. Plaintiffs ask that the late filing be excused in light of the "extraordinary circumstances" caused by the COVID-19 pandemic and "stay-at-home orders," which impeded their ability to find and retain an attorney to prepare the lawsuit. Dkt. No. 1 ¶ 10; see also Dkt. No. 7-2 ¶¶ 7-14 (Joseph Decl.).
The government contends that the case must be dismissed under Rule 12(b)(1) because Section 2023(a)(13) waived the sovereign immunity of the United States for only 30 days, after which the jurisdictional window slammed shut forevermore. Dkt. No. 18 at 4-5; see also Dep't of Treas.-I.R.S. v. Fed. Lab. Relations Auth. , 521 F.3d 1148, 1152 (9th Cir. 2008) (sovereign immunity goes to jurisdiction). Plaintiffs argue that the statutory deadline is not jurisdictional and may be tolled or extended by the Court. Dkt. No. 27 at 5-7; see also Dkt. No. 7 (motion for equitable tolling). The Court has detailed in other orders the standards governing a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. See, e.g. , Friends of Del Norte v. California Dep't of Transportation , No. 3:18-CV-00129-JD, 2020 WL 1812175, at *1 (N.D. Cal. Apr. 9, 2020). The Court applies those standards here, and the parties’ familiarity with them is assumed.
Plaintiffs’ point is well taken. The 30-day deadline in Section 2023(a)(13) does not automatically bar plaintiffs’ lawsuit, as the government would have it. To be sure, some prior cases treated the deadline as a jurisdictional limitation on the waiver of sovereign immunity. See, e.g. , Shoulders v. U.S. Dep't of Agric., Food & Nutrition Serv. , 878 F.2d 141, 143 (4th Cir. 1989) ; Omari v. United States , No. C-12-1592 MEJ, 2012 WL 3939362, at *4 (N.D. Cal. Sept. 10, 2012). But the Supreme Court has since re-affirmed the " ‘general rule’ that equitable tolling is available in suits against the Government." United States v. Kwai Fun Wong , 575 U.S. 402, 412, 135 S.Ct. 1625, 191 L.Ed.2d 533 (2015) (quoting Irwin v. Dep't of Veterans Affairs , 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) ). Congress is perfectly free to depart from that rule and make a filing deadline jurisdictional, but must affirmatively communicate that intention. Id. at 409-10, 135 S.Ct. 1625. Otherwise, a statutory time bar is presumed to be non-jurisdictional, and filing deadlines are simply " ‘quintessential claim-processing rules’ which ‘seek to promote the orderly progress of litigation,’ but do not deprive a court of authority to hear a case." Id. at 410, 135 S.Ct. 1625 (quoting Henderson v. Shinseki, 562 U.S. 428, 435, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) ); see also Sebelius v. Auburn Reg'l Med. Ctr. , 568 U.S. 145, 153-54, 133 S.Ct. 817, 184 L.Ed.2d 627 (2013) (noting Court has "repeatedly held that filing deadlines ordinarily are not jurisdictional," and that a rule is not jurisdictional absent a "clear statement" from Congress) (internal citations omitted). It "makes no difference that a time bar conditions a waiver of sovereign immunity." Wong , 575 U.S. at 420, 135 S.Ct. 1625.
As these cases indicate, the government has to "clear a high bar" to show that Congress intended the 30-day deadline in Section 2023(a)(13) to be a jurisdictional limitations period. Id. at 410, 135 S.Ct. 1625. It has not succeeded. Nothing in the plain language of the statute manifests a jurisdictional intention. To the contrary, Section 2023(a)(13) " ‘reads like an ordinary, run-of-the-mill statute of limitations,’ spelling out a litigant's filing obligations without restricting a court's authority." Wong , 575 U.S. at 411, 135 S.Ct. 1625 (quoting Holland v. Florida , 560 U.S. 631, 647, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) ); see also Sebelius , 568 U.S. at 154, 133 S.Ct. 817 (statute saying litigants "may obtain a hearing" within 180 days of final administrative determination "hardly reveals a design to preclude any regulatory extension"). Far stronger language has been deemed to be non-jurisdictional, which further underscores that Congress did not speak to jurisdiction simply by setting a filing deadline in Section 2023(a)(13). See, e.g., Wong , 575 U.S. at 405, 135 S.Ct. 1625 (filing deadline in Federal Tort Claims Act stating "shall be forever barred" not jurisdictional); Henderson , 562 U.S. 428, 438, 131 S.Ct. 1197 (2011) (same re "shall file a notice of appeal"). The government has not established that Congress meant Section 2023(a)(13) to be "the rare statute of limitations that can deprive a court of jurisdiction." Wong , 575 U.S. at 410, 135 S.Ct. 1625. The next question is whether Section 2023(a)(13) manifests a "clear intent to preclude tolling," or "leaves room" for flexibility. Nutraceutical Corp. v. Lambert , ––– U.S. ––––, 139 S. Ct. 710, 714, 203 L.Ed.2d 43 (2019) ; see also Young v. United States , 535 U.S. 43, 49, 122 S.Ct. 1036, 152 L.Ed.2d 79 (2002) (statutory deadline is subject to equitable tolling unless inconsistent with text). Non-jurisdictional limitations periods are "normally subject to a ‘rebuttable presumption’ in favor ‘of equitable tolling,’ " Holland v. Fla. , 560 U.S. 631, 645-46, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (emphasis in original) (quoting Irwin v. Dep't of Veterans Affairs , 498 U.S. 89, 95-96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) ), and the "simple fact that a deadline is phrased in an unqualified manner does not necessarily establish that tolling is unavailable," Nutraceutical , 139 S. Ct. at 715.
Nothing in Section 2023(a) precludes tolling. The plain language certainly does not say that. See Holland , 560 U.S. at 647, 130 S.Ct. 2549 (lack of "unusually emphatic" language suggests equitable tolling is available). In addition, the 30-day period for seeking judicial review is "not particularly long," and is not part of a detailed scheme providing different deadlines for bringing different kinds of claims, which are among other factors the Supreme Court has considered in determining whether a statutory deadline may be equitably tolled. Id. at 646-47, 130 S.Ct. 2549.
The absence of clear language barring tolling distinguishes this case from Nutraceutical , which the government relies on. Nutraceutical held that the deadline to seek an appeal of a class certification order under Federal Rule of Civil Procedure 23(f) cannot be equitably tolled because the procedural rule allowing extensions for other deadlines expressly states that a court "may not extend" Rule 23(f) ’s deadline. 139 S. Ct. at 715 (quoting Fed. R. App. P. 26(b) ). No similar text is present here. Congress did not "single out" Section 2023(a)(13) ’s thirty-day deadline for "inflexible treatment," or show a "clear intent to compel rigorous enforcement." Id. at 715.
The final question is whether plaintiffs’ late filing should be excused. To be entitled to equitable tolling, plaintiffs must show (1) that some extraordinary circumstance outside of their control prevented timely filing, and (2) that they were reasonably diligent in pursuing their rights. Holland , 560 U.S. at 649, 130 S.Ct. 2549 (citing Pace v. DiGuglielmo , 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) ). Although the Ninth Circuit has described the "threshold necessary to trigger equitable tolling" as "very high" Miranda v. Castro , 292 F.3d 1063, 1066 (9th Cir. 2002) (internal citation and quotations omitted), the Supreme Court has concluded that only "reasonable diligence" is required, not "maximum feasible diligence," Holland , 560 U.S. at 653, 130 S.Ct. 2549 (internal citations and quotations omitted); see also Wong , 575 U.S. at 407-08, 135 S.Ct. 1625.
Plaintiffs are entitled to tolling. It should go without saying that the current public health crisis and resulting restrictions on civil and personal life are extraordinary circumstances by any measure. That was all the more true in the early part of 2020 when the pandemic initially struck, and when plaintiffs’ time to file a lawsuit was running. The record indicates, without meaningful dispute by the government, that plaintiff Joseph exercised reasonable diligence in looking to hire a lawyer, and the delay in filing the complaint was of minimal duration. See Dkt. No. 7-2 ¶¶ 7-12. These circumstances warrant tolling of the Section 2023(a)(13) deadline. CONCLUSION
The motion to dismiss for lack of subject matter jurisdiction, Dkt. No. 18, is denied. Plaintiffs’ motion for equitable tolling and to excuse the late filing of the complaint, Dkt. No. 7, is granted. The Court will enter a scheduling order.