I'm listening in to the hearing on the Motion for TRO in the Boston SNAP case. We're waiting for Judge Talwani to take the bench. I'll try to do the Comey hearing at 4:00 ET if possible, but guessing these two will overlap. Reminder, this is the lawsuit brought by 26 states to force the USDA to fund SNAP during the shutdown. Unlike the Rhode Island SNAP case, this one has not gone up on appeal (yet). At issue today, I believe, is the UDSA's memo telling states "undo" the SNAP benefits issued since Thurs. This hearing was originally set for 11/13, but was re-set this morning after plaintiffs filed a Motion for Further TRO and Emergency Hearing yesterday. courtlistener.com
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I got admitted with arguments already on-going, so give me a moment to figure out where we are. Judge Talwani is running down the procedural history of the lawsuit for her own clarification. Judge Talwani is reading the USDA memo to states that says they are working on completing the processes to allow full SNAP funding from Nov. 7, the day after Judge McConnell's order came down in RI. Defendant's are arguing that the USDA memo was clear that states were to wait for further guidance. Judge Talwani: Okay, but it doesn't say that, It says you are complying with Judge McConnell's order. Sounds like we have Tyler Becker for the DOJ - he's the lawyer who got smacked around by Judge McConnell in RI. Judge Talwani: You would agree with me, Mr. Becker, that it doesn't say anywhere that the payments aren't going forward. It doesn't say there's a motion for a stay or an appeal... Becker is insisting that the USDA complied with the RI order. Talwani: I have been holding back and not trying to complicate your life, you were seeking a stay, which you had every right to do. But in the meantime, everyone else is trying to sort this out. There is now a mess on our hands. Judge Talwani: What you said to the states on the 7th is that you are complying with the judge's order, and that you are preparing to make payments. Then, later that night, you were able to get the stay. Becker: Only 3 states went ahead - completely unauthorized -- and paid full benefits Judge Talwani: The memo might have some ambiguity to it, but it doesn't say "don't do anything." People had been without food stamps for 7 days, Maybe states didn't do it right, that's not my concern. What is my concern is that pepole had taken steps prior to the stay. ... Judge Talwani: The next thing that happens is the Saturday letter. Nothing says "please stop whatever you are doing. We're seeking a stay." Instead, the letter THREATENS the states, it says their actions were "unauthorized," and that steps would be taken against states that didn't UNDO what was done Judge Talwani: And THEN you want and advised the 1st Circuit that graves steps were being taken. So what we have no is completely confusion. Becker: The confusion is of the states' making. These are sophisiticated actors, they could have waited until that funding was issued to distribute funds. Becker: Some states didn't even wait for guidance, they just acted on the RI judge's order Judge Talwani: But you're saying everyone is supposed to act like there's a stay when there isn't one. Becker: States jumped the gun, blah blah blah Becker: In this hearing, we don't even have the actors we need to remedy this situation Judge Talwani: Mr Becker, these are very hot times right now. We have a mess on our hands because there's no funding, we ve got a statutory mess, and people are trying to figure out how to move forward. Judge Talwani: And what you are saying is that people had no right to rely on a federal order, and you've asked me to hold things in abeyance because of the RI litigation. And then to go and say to the First Circuit that the states were not parties to the RI case.... Judge Talwani sounds fairly incandescent with rage. Talwani: I get it, the memo didn't say "pay out full benefits," but it did say that you were complying with the judge's order. And there's no calculation needed to pay out full benefits- it happens every month. Becker: It says we'd take steps to make funding available and that we'd provide an update... Talwani: But you said you were going to provide the funds. Reads the part where USDA says "we're complying with the court order" It seems to me the states acted reasonably. Talwani: And that the NEXT MOVE was a blustery letter on Saturday night - We're trying to get benefits to people who need food. Becker: The gov't totally agrees, we want people to get benefits. They could provide part benefits today. Talwani: Why would they provide partial benefits today? When there's a court order to pay full benefits and a First Circuit order denying your stay while appeal is pending. No one is saying you are right to make partial payments. Becker: Yes, because 65% of benefits will be paid. Judge Talwani: You've been filing declaration after declaration saying that it will take weeks to re-program the computers and more weeks to UNDO the partial payment. So what are they supposed to do? Plaintiffs: It will take weeks. Just because some states have done it doesn't mean all states can Becker: The states knew about the posture of the case, that there was a stay sought.... Talwani: The stay was SOUGHT but not yet GRANTED. You are saying they had to act like a stay was in place. Becker: States chose to jump the gun. All we were told to do on the 7th was to make full benefits... Talwani: I will keep in place my order directing the agencies to reimburse funds that were issued. Becker asks for a stay. Talwani: It seems to me that if the USDA is simply trying to comply with the law, and with POTUS' policy, don't play vindictive games with the states. Talwani: Is back on the mean letter from Saturday night. "There is no evidence that the states acted improperly after teh stay was entered." Becker: Minnesota did. Plaintiffs; USDA guidance remained in place for a full 24 hours after the administrative stay was entered by SCOTUS. So states interpreted the guidance as allowing them to pay full benefits. Some pro se attorney tried to jump in and got muted Talwani: The states have asked for further relief as to the payment of full SNAP benefits. I am concerned that defendants are taking the position that the states wouldn't have the benefits and consequences of whatever is happening in RI case. Are you saying this should all be held in abeyance? Becker: says filling in RI case was saying states were trying to rely on RI case Talwani: Yeah, but you used the word "parties." Do I need to issue an order saying that the states have the protection of the RI case? Talwani: Out of an abundance of caution, is there any reason that I should not issue an order essentially parallel to the RI one to make sure the states have the same protection. Becker: We don't think that's necessary, we think that would add further confusion. Talwani: Because I'm concerned. Talwani: You told the First Circuit that the states were not partis to the RI injunction. You used those words. Tyler: Gov't are all working long hours and not being paid because of Congress. Insists that line didn't mean what it said in First Circuit filing. Becker: Nothing will affect the SNAP cards themselves, this is just an issue of reimbursing the states. We want to ensure the situation is stable and that everyone wait for guidance before moving forward. Plaintiffs: We think a parallel order is a good idea and explicitly allows states to release fund to vendors as soon as possible. Talwani: If I do issue a further order, there is no point in an order that tells the gov't to do something while there is a stay on another order. Becker is arguing about confusion. Judge Talwani: I'm assuming you'll immediately file an appeal, am I wrong? Becker wants any order to tell the states not to do anything without further guidance from the USDA. Talwani: Back on Oct 30, the charge the gov't had was to evaluate whether to pay out full or partial funds. We're here on Nov 10, and you currently sit with RI and 1st Cir stay request. Talwani: And you also have a tentative deal in Congress to end the shutdown. Don't you have an obligation to reconsider the decision to pay partial benefits? In the current posture, isn't the USDA obligated to reconsider the chaos of the partial payments is no longer appropriate? Becker: The USDA continues to urge the states to issue partial benefits. Given that Congress may end the shutdown soon, we can't guarantee that it will end. Talwani: My ? isn't what the state should do. Shouldn't the USDA re-evaluate how it had used its discretion in this matter? Talwani: Okay, so no obligation to review your decision in this case. If a deal in Congress goes through, is it your view that November isn't paid for? Becker: It's up to Congress, the USDA will issue full payments within 24 hours/. Talwani: It's up to Congress because you've refused to pay Talwani: It's hard to see how this isn't just being used as leverage. Becker starts to argue, Talwani cuts him off. "Understood! But people are hungry right now!" Becker makes the argument that Judge McConnell shot down in RI "If we use funds now for SNAP, there won't be funds for Child Nutrition Program" Talwani: That's not true, You're not using the $$ for CNP, you've got it sitting in the bank. Becker: It's not accurate to say people aren't getting funds because of USDA. We've provided partial funds. Talwani: The states have pointed out that the tables your provided for partial benefits are wrong. They say the min amount doens't follow the regulatory scheme... Becker: This comes down to a difference in interpretation between MA and the USDA. Talwani: But what you ignore is that there is specific language in the regulation that defines what the minimum amount is. (reads off the regulation language) Talwani: So in the midst of all of this, we're dealing with USDA calculation tables that are just wrong. Becker: Your honor, the USDA disagrees with that. Plaintiffs point out that interpretation only comes into play when regulations are ambiguous. Talwani agrees. Talwani: Basically, the regulations say there's a floor. What are the states supposed to do if the table you've given them in wrong Becker: States need to wait for FNS guidance. We have a different interpretation of the regulation. Talwani: So if I told you the tables are wrong and you have to update the guidance, what would you do? Becker: We'd have to update the guidance. Judge Talwani is going to issue an order that protects the states from the USDA claiming they can't rely on the RI decision. We'll see what else makes it in there. Talwani says her order will incorporate the ruling she made this morning STAYING the USDA's memo telling states to undo what SNAP benefits they may have paid out. courtlistener.com
And we're in recess. Thanks for following along! Please check out my newsletter and consider subscribing: losingmyperspicacity.beehiiv.com
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