In a decision of importance to SNAP retailers, a U.S. District Court judge has held that the thirty-day deadline for seeking judicial review of Final Agency Decisions issued by USDA’s Food & Nutrition Service (FNS) is jurisdictional. In an opinion issued on June 6, 2023 in Mohammed v. USDA, Case No 22-cv-4721, Judge Mary Kay Vyskocil of the Southern District of New York granted the United States’ motion to dismiss a SNAP judicial review case for lack of jurisdiction based on the untimely filing of the plaintiff’s complaint.
In Mohammed, the owner of a retail food store in Harlem sought judicial review of an adverse FNS decision imposing a term disqualification of the plaintiff’s store from the Supplemental Nutrition Assistance Program (SNAP) based on the sale of ineligible items in exchange for SNAP benefits. When it enacted the Food and Nutrition Act of 2008, Congress permitted aggrieved SNAP retailers to seek de novo judicial review “within thirty days after the date of delivery or service of the final notice of determination.” 7 U.S.C. § 2023(a)(13). Federal courts have held this statutory language to act as a limited waiver of the sovereign immunity typically enjoyed by the United States.
In Mohammed, the store argued that it filed suit within thirty days of receipt of FNS’s email transmitting the Final Agency Decision. The District Court applied the “mailbox rule” and rejected the store’s argument, noting that there was no dispute that the Final Agency Decision was “delivered” when the agency transmitted the e-mail to the plaintiff. Because the complaint was filed more than 30 days after delivery of the Final Agency Decision, the District Court concluded that the jurisdictional window had been missed, thus requiring dismissal of the complaint.
The decision in Mohammed is inconsistent with the holdings of other federal courts, including Quick Korner Market v. USDA, 180 F. Supp. 3d 683 (S.D. Calif. 2016) and Joseph v. United States, 505 F. Supp. 977 (N.D. Calif. 2020) which have held that the thirty-day filing deadline is not jurisdictional and is subject to equitable tolling.
The Mohammed decision underscores the need for SNAP retailers to seek experienced SNAP counsel. While it remains unclear why the thirty-day filing deadline was missed, there is no dispute that the store (and presumably its attorneys) had ample time to file suit. Additionally, the complaint was improperly brought against USDA; in SNAP judicial review cases, the United States is the only proper defendant. Finally, it does not appear that the store brought the U.S. Supreme Court’s decision in United States v. Kwai Fun Wong, 575 U.S. 402 (2015) to the attention of the decision court; that case stands for the proposition that equitable tolling is generally available in suits against the federal government. Given the split in opinions issued by district courts across the country, aggrieved SNAP retailers would be well advised to retain counsel with experience litigating judicial review cases, especially following the permanent disqualification of a store based on FNS’s determination that it engaged in trafficking in food stamps.
OFW Principal Stewart Fried has represented hundreds of SNAP retailers for more than a decade and has litigated dozens of SNAP judicial review cases across the United States.
