For more than 20 years, Federal law has expressly provided that states may test welfare recipients for use of controlled substances free from interference of federal agencies. 21 U.S.C. §862(b). Relying upon this Congressional enactment, Wisconsin passed Act 55 during 2015. Act 55 authorized new drug screening and testing requirements for certain SNAP beneficiaries in the Badger State. These new requirements teed up a conflict with a long-standing U.S. Food and Nutrition Service (“FNS”) food stamp regulation that prohibits states from imposing additional eligibility requirements on SNAP beneficiaries. 7 C.F.R. §273.2.
Prior to the effective date of Act 55, a senior FNS official corresponded with the Wisconsin Department of Health Service (“WDHS”), Wisconsin’s SNAP agency, reminding it of the prohibition against the imposition of additional SNAP eligibility requirements and advising that FNS would continue to monitor and advise WDSH if the then-bill passed. On the day that Act 55 took effect, Wisconsin sued USDA Secretary Tom Vilsack, USDA Under Secretary Kevin Concannon, and three senior FNS officials seeking a declaration under the Administrative Procedure Act (“APA”) and the Declaratory Judgment Act that the state’s new drug testing requirements were valid. The state’s lawsuit was premised largely upon Secretary Vilsack’s “public statements,” which were widely reported in the press, that Wisconsin’s new drug requirements “violate federal law.”
The APA permits pre-enforcement review of final agency action by federal district courts. Under the APA, agency action is defined as “the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. §551(13). For an agency action to be “final,” it must satisfy two conditions: (1) the action cannot be tentative and must “mark the consummation of the agency’s decisionmaking process”; and (2) legal consequences must flow from the agency’s action. If a federal agency has not completed its decisionmaking process or if the result of that process does not directly affect the parties, agency action is generally deemed not final.
During late September 2016, the Eastern District of Wisconsin dismissed the state’s lawsuit for lack of subject matter jurisdiction based on ripeness grounds. The ripeness doctrine, which is founded upon Article III, Section 2, of the U.S. Constitution, limits federal court jurisdiction to “cases and controversies,” and precludes federal judges from issuing advisory opinions. The district court rejected Wisconsin’s arguments that Secretary Vilsack’s statements constituted final agency action because public statements to a reporter, even from a Cabinet-level official, neither constitute final agency action nor impose legal obligations or consequences. The district court also noted that Wisconsin had not taken any steps to implement its new drug testing requirements, nor had it updated its state SNAP plan. “Any possibility of future action by [FNS] is, at this time, hypothetical.” Based thereon, the district court concluded that any decision would merely be advisory.
The Court’s decision also rejected Wisconsin’s argument that it would suffer hardship by being forced to choose between enforcing its own law (and potentially losing millions of federal SNAP dollars) and declining to enforce Act 55. Noting that FNS has not taken a final position on the legality of the Wisconsin legislation, the district court judge held that “enforcement is not certain.” Moreover, because FNS must notify states prior to taking adverse action based on a state’s administration of SNAP benefits and any such decision is subject to administrative and judicial review, Wisconsin would not suffer hardship.
Most administrative law practitioners were not surprised by the district judge’s decision. In APA litigation, an analysis of whether final agency action exists is a standard prerequisite to filing suit against a federal agency. It is also likely that political considerations played a major role in Wisconsin’s decision to file suit – Wisconsin Governor Scott Walker was a candidate for the Republican nomination at that time. Although Wisconsin did not appeal the decision, it is doubtful that the issue has been resolved for good. Thorny questions regarding the apparent conflict between statutory welfare reform provisions and FNS’s SNAP regulations remain unanswered. Moreover, a new USDA Secretary and Under Secretary for Food, Nutrition and Consumer Services appointed by President-Elect Trump will soon occupy the Whitten Building. Needless to say, their opinions regarding the propriety of Wisconsin’s new drug testing and screening regime may be markedly different than those held by their predecessors.