In a decision which should come to no surprise to those who represent SNAP retailers in lawsuits against the federal government, a federal court in Rhode Island recently held that the removal of a SNAP judicial review suit filed in state court against the United States to federal court was proper. On June 12, 2023, U.S. District Court Judge McConnell issued an opinion in Gulf Express v. United States by and through USDA’s Food and Nutrition Service denying remand of the case back to Rhode Island Superior Court. The District Court reasoned that while the Food and Nutrition Act of 2008, 7 U.S.C. § 2023(a)(13), permitted parties to sue in either federal or state court, Congress did not indicate “clear congressional intent” to bar removal.
Judge McConnell found that removal was proper under two separate grounds: 28 U.S.C. § 1441(a) and 28 U.S.C. § 1442(a)(1). First, § 1441(a) provides that any civil action in which a federal district court has original jurisdiction can be removed to the local federal district court. As noted above, the Food and Nutrition Act of 2008 permits judicial review cases to be filed in either state or federal court; accordingly, removal to the U.S. District of Rhode Island was proper. Second, § 1442(a) provides that cases brought against the United States, its agencies, and its officials are removable to federal court. Since the United States, by and through FNS, was named as a defendant, removal was also proper under § 1442(a).
It is important to note that the district court’s opinion was not a tough call. It is perplexing that counsel for the retailer moved for remand in light of these seemingly clear statutory provisions. Perhaps the retailer’s counsel was not particularly experienced in filing SNAP judicial review complaints against the federal government; in those cases, the United States (and not USDA, FNS, or Secretary Vilsack) is the sole proper party. SNAP retailers who decide to file suit against the federal government should take care to retain experienced counsel. While a successful resolution cannot be guaranteed, retaining counsel with substantial experience representing SNAP retailers should, at a minimum, help avoid incurring attorney’s fees associated with unnecessary motion practice.
OFW Principal Stewart Fried has represented hundreds of SNAP retailers in administrative and judicial review proceedings against the federal government and USDA’s Food & Nutrition Service.
