Garnett v. Zeilinger
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Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
SHONICE G. GARNETT, et al.,
Plaintiffs,
v. Case No. 17-cv-1757 (CRC)
LAURA ZEILINGER,
Defendant.
MEMORANDUM OPINION
Not being a State often places the District of Columbia at a disadvantage. In this case,
however, it works to its benefit.
The Supplemental Nutrition Assistance Program (“SNAP”) Act requires participating
States to abide by strict deadlines for processing benefit applications and periodically
recertifying benefit eligibility. The statute treats the District as if it were a State. In 2017, a
group of D.C. residents and the non-profit organization Bread for the City brought suit under 42
U.S.C. § 1983 against the director of the agency that administers the District’s SNAP program
over problems the city was having in meeting these statutory deadlines. In May 2018, the Court
entered a partial preliminary injunction compelling the District to comply with the SNAP Act’s
deadlines for recertifying benefit eligibility. Following extensive discovery, both parties now
move for summary judgment, and Plaintiffs move for a permanent injunction.
Ordinarily, plaintiffs challenging a State’s compliance with SNAP Act processing
timelines would be entitled to summary judgment if they could show that the State has fallen
short of absolute compliance (or something very close to it). But, because D.C. is a
municipality, not a State, Plaintiffs here shoulder a heavier burden. They must show not only
that the District has failed to strictly comply with the Act’s processing deadlines; they must also establish that the failure resulted from a policy or practice adopted by District officials. See
Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). Plaintiffs have
not satisfied this second element of liability. Finding that the record reflects substantial efforts
by the District to improve its timeliness performance, the Court concludes that there is
insufficient evidence that a policy or practice of the District caused violations of the Plaintiffs’
statutory rights to timely processing of their SNAP applications. The Court will therefore vacate
its earlier injunction and grant summary judgment to the District.
I. Background
The Court has addressed the relevant background at length in several prior opinions in
this case. See Garnett v. Zeilinger (“Garnett I”), 301 F. Supp. 3d 199, 203–04 (D.D.C. 2018)
(class certification order); Garnett v. Zeilinger (“Garnett II”), 313 F. Supp. 3d 147, 150–54
(D.D.C. 2018) (preliminary injunction opinion); Garnett v. Zeilinger (“Garnett III”), 323 F.
Supp. 3d 58, 62–63 (D.D.C. 2018) (ruling on motion to dismiss). It therefore will provide only
an abbreviated background discussion here, with a focus on new developments since the Court’s
prior rulings.
A. Regulatory Background
The Supplemental Nutrition Assistance Program (“SNAP”) provides benefits to low-
income households to help them purchase food. 7 U.S.C. §§ 2011–2036d. To receive
assistance, a household must file an initial application for benefits, participate in an interview,
and verify certain eligibility information. Id. § 2014(a); 7 C.F.R. § 273.2(a)(2). If approved, the
household is certified to receive benefits for a specific timeframe, known as the “certification
period.” 7 U.S.C. § 2020(e)(4); 7 C.F.R. § 273.10(f). Prior to the end of its certification period,
2 a household must submit a recertification application to continue receiving benefits. 7 U.S.C.
§ 2020(e)(4).
Responsibility for administering SNAP is divided between the federal government and
state governments. States that elect to participate in the program receive funding for benefits and
50% of administrative costs from the federal government. Id. §§ 2013(a), 2025. In return, States
must administer their programs in accordance with federal statutory and regulatory requirements.
See 7 U.S.C. § 2020(e); 7 C.F.R. § 273.2. As relevant here, those requirements include strict
deadlines within which States must process their residents’ SNAP applications.
With respect to initial applications, the certification process must be completed, and
benefits provided, within 30 days of an application’s filing. 7 U.S.C. § 2020(e)(3). The deadline
is even more stringent—no later than seven days after an application is filed—for so-called
“expedited” applications from households with extremely low income. Id. § 2020(e)(9)(A); 7
C.F.R. § 273.2(i)(2), (3), (4). As for recertification applications, the agency must provide each
household with a notice of expiration and of the need to recertify before the start of the last
month of their certification period. 7 U.S.C. § 2020(e)(4); 7 C.F.R. § 273.14(b)(1). If a
household submits its recertification application at least 15 days prior to the expiration of its
certification period, the State must provide benefits—if the household remains eligible—without
interruption. 7 U.S.C. § 2020(e)(4); 7 C.F.R. § 273.14(c), (d). If a household submits its
recertification application within a 45-day grace period after the 15th day of the last certification
month, the State must process the application within 30 days of the application filing date. 7
C.F.R. § 273.14(e)(1).
The certification or recertification process may be held up if the customer is missing
verification or does not complete an interview. In the former scenario, the agency is required to
3 provide households with a notice of required verification and at least ten days to provide the
missing verification. 7 C.F.R. §§ 273.2(f) (initial application), 273.14(b)(4) (recertification). In
the latter situation, the agency must “promptly” schedule an interview within the 30 days of the
application and, if a household misses an interview, provide a notice of missed interview. Id.
§§ 273.2(e)(3) (initial application); 273.14(b)(4) (recertification).
The federal Food and Nutrition Service (“FNS” or the “Service”), an agency within the
Department of Agriculture, oversees the States’ administration of SNAP. 7 U.S.C. § 2013(c); 7
C.F.R. § 271.3.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
SHONICE G. GARNETT, et al.,
Plaintiffs,
v. Case No. 17-cv-1757 (CRC)
LAURA ZEILINGER,
Defendant.
MEMORANDUM OPINION
Not being a State often places the District of Columbia at a disadvantage. In this case,
however, it works to its benefit.
The Supplemental Nutrition Assistance Program (“SNAP”) Act requires participating
States to abide by strict deadlines for processing benefit applications and periodically
recertifying benefit eligibility. The statute treats the District as if it were a State. In 2017, a
group of D.C. residents and the non-profit organization Bread for the City brought suit under 42
U.S.C. § 1983 against the director of the agency that administers the District’s SNAP program
over problems the city was having in meeting these statutory deadlines. In May 2018, the Court
entered a partial preliminary injunction compelling the District to comply with the SNAP Act’s
deadlines for recertifying benefit eligibility. Following extensive discovery, both parties now
move for summary judgment, and Plaintiffs move for a permanent injunction.
Ordinarily, plaintiffs challenging a State’s compliance with SNAP Act processing
timelines would be entitled to summary judgment if they could show that the State has fallen
short of absolute compliance (or something very close to it). But, because D.C. is a
municipality, not a State, Plaintiffs here shoulder a heavier burden. They must show not only
that the District has failed to strictly comply with the Act’s processing deadlines; they must also establish that the failure resulted from a policy or practice adopted by District officials. See
Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). Plaintiffs have
not satisfied this second element of liability. Finding that the record reflects substantial efforts
by the District to improve its timeliness performance, the Court concludes that there is
insufficient evidence that a policy or practice of the District caused violations of the Plaintiffs’
statutory rights to timely processing of their SNAP applications. The Court will therefore vacate
its earlier injunction and grant summary judgment to the District.
I. Background
The Court has addressed the relevant background at length in several prior opinions in
this case. See Garnett v. Zeilinger (“Garnett I”), 301 F. Supp. 3d 199, 203–04 (D.D.C. 2018)
(class certification order); Garnett v. Zeilinger (“Garnett II”), 313 F. Supp. 3d 147, 150–54
(D.D.C. 2018) (preliminary injunction opinion); Garnett v. Zeilinger (“Garnett III”), 323 F.
Supp. 3d 58, 62–63 (D.D.C. 2018) (ruling on motion to dismiss). It therefore will provide only
an abbreviated background discussion here, with a focus on new developments since the Court’s
prior rulings.
A. Regulatory Background
The Supplemental Nutrition Assistance Program (“SNAP”) provides benefits to low-
income households to help them purchase food. 7 U.S.C. §§ 2011–2036d. To receive
assistance, a household must file an initial application for benefits, participate in an interview,
and verify certain eligibility information. Id. § 2014(a); 7 C.F.R. § 273.2(a)(2). If approved, the
household is certified to receive benefits for a specific timeframe, known as the “certification
period.” 7 U.S.C. § 2020(e)(4); 7 C.F.R. § 273.10(f). Prior to the end of its certification period,
2 a household must submit a recertification application to continue receiving benefits. 7 U.S.C.
§ 2020(e)(4).
Responsibility for administering SNAP is divided between the federal government and
state governments. States that elect to participate in the program receive funding for benefits and
50% of administrative costs from the federal government. Id. §§ 2013(a), 2025. In return, States
must administer their programs in accordance with federal statutory and regulatory requirements.
See 7 U.S.C. § 2020(e); 7 C.F.R. § 273.2. As relevant here, those requirements include strict
deadlines within which States must process their residents’ SNAP applications.
With respect to initial applications, the certification process must be completed, and
benefits provided, within 30 days of an application’s filing. 7 U.S.C. § 2020(e)(3). The deadline
is even more stringent—no later than seven days after an application is filed—for so-called
“expedited” applications from households with extremely low income. Id. § 2020(e)(9)(A); 7
C.F.R. § 273.2(i)(2), (3), (4). As for recertification applications, the agency must provide each
household with a notice of expiration and of the need to recertify before the start of the last
month of their certification period. 7 U.S.C. § 2020(e)(4); 7 C.F.R. § 273.14(b)(1). If a
household submits its recertification application at least 15 days prior to the expiration of its
certification period, the State must provide benefits—if the household remains eligible—without
interruption. 7 U.S.C. § 2020(e)(4); 7 C.F.R. § 273.14(c), (d). If a household submits its
recertification application within a 45-day grace period after the 15th day of the last certification
month, the State must process the application within 30 days of the application filing date. 7
C.F.R. § 273.14(e)(1).
The certification or recertification process may be held up if the customer is missing
verification or does not complete an interview. In the former scenario, the agency is required to
3 provide households with a notice of required verification and at least ten days to provide the
missing verification. 7 C.F.R. §§ 273.2(f) (initial application), 273.14(b)(4) (recertification). In
the latter situation, the agency must “promptly” schedule an interview within the 30 days of the
application and, if a household misses an interview, provide a notice of missed interview. Id.
§§ 273.2(e)(3) (initial application); 273.14(b)(4) (recertification).
The federal Food and Nutrition Service (“FNS” or the “Service”), an agency within the
Department of Agriculture, oversees the States’ administration of SNAP. 7 U.S.C. § 2013(c); 7
C.F.R. § 271.3. As part of its extensive oversight duties, FNS monitors the States’ SNAP
application processing using three timeliness metrics. See Memorandum from Lizbeth
Silbermann on the Three Ways Initial SNAP Application Processing Timeliness is Measured to
All SNAP Regional Directors (“FNS June 2017 Memo”) 1 (June 2, 2017), Gov. MSJ, Exh. Q.
First, the Application Processing Timeliness Rate (“QC APT Rate”) is based on a sample of
approximately 90 active cases (households currently receiving benefits) pulled each month. Id.
at 1–2. The State agency’s Quality Control (“QC”) team collects information on whether initial
applications sampled were processed on a timely basis, and the number of applications approved
timely is divided by the total applications in the sample to arrive at the QC APT Rate. Id.
Second, the State Timeliness Rate is calculated from the entire universe of State SNAP cases by
dividing the total number of initial applications approved timely by the total number of
applications. Id. at 3–4. Finally, the Certification Section of the FNS Program and Budget
Summary Statement, Part B-Program Activity Statement (“FNS-366B”) tracks the number
of initial and recertification applications approved or denied by the State agency in the specified
reporting quarter, including the number of application decisions that were overdue by 1–30 days,
4 31–60 days, 61–90 days, and 91 days or more. Id. at 4–5. 1 In addition to these quantitative
measures, FNS regularly monitors States’ SNAP administration through management evaluation
reviews, advocate and client complaints, and other methods of information gathering. Id. at 1;
see, e.g., Pl. MSJ, Exh. G.
Based on this monitoring, FNS enforces the SNAP Act’s timeliness requirements through
a standard escalation protocol. See Memorandum from Lizbeth Silbermann on Guidance for
Improving State Timeliness Rates & Standardizing the Escalation Process to All SNAP Regional
Directors (“FNS March 2016 Memo”) (Mar. 18, 2016), Gov. MSJ, Exh. S, ECF No. 138-21.
The protocol is based primarily on the QC APT Rate: FNS considers a rolling six-month
average QC APT Rate of 95% or higher to be acceptable performance and subjects States to
escalation procedures only if their rate dips below 90%. Id. at 2. 2 The first step in the escalation
protocol is to subject States to a Corrective Action Plan (“CAP”). Id. at 3–4; 7 C.F.R. § 275.17.
If States do not improve their timeliness within a specified amount of time, FNS sends an
Advance Warning Letter of possible suspension of federal funds, see FNS March 2016 Memo 4–
5; 7 C.F.R. § 276.4(d)(1), which may be followed by a Formal Warning Letter, see FNS March
2016 Memo 5–6; 7 C.F.R. § 276.4(d)(2), and eventually, suspension or disallowance of federal
1 An initial application is overdue if the approval determination is made more than 30 days from the date of a regular application and more than seven days from the date of an expedited application. Id. at 5. A recertification application is overdue if the approval decision is made after the date of the household’s normal issuance date. Memorandum from Lizbeth Silbermann on Clarifications for Reporting on the Certification Section of the FNS-366B to All SNAP Regional Directors (“FNS Jan. 2017 Memo”) 3 (Jan. 11, 2017), https://fns- prod.azureedge.net/sites/default/files/snap/366B-Certifications-Question-and-Answer.pdf. 2 FNS may also subject States to escalation procedures if their State Timeliness Rate (calculated from the entire universe of SNAP cases rather than a QC sample) falls below 90%. Id. at 3.
5 SNAP funding, see FNS March 2016 Memo 5–6; 7 C.F.R. § 276.4(e). FNS will assist poor
performing States by engaging with their senior management officials, expanding technical
assistance, sharing information on effective practices, procedures, and policies of States with
recent improvements or sustained high performance, and providing advice on business process
reengineering. FNS March 2016 Memo 6–7.
B. The District’s Administration of SNAP
The District of Columbia, which is treated as a State under the SNAP Act, see 7 U.S.C.
§ 2012(r), has delegated its administration of SNAP to the Economic Security Administration
(“ESA”) of its Department of Health Services (“DHS” or the “Department”). Gov. Stmt. Mat.
Facts ¶ 2. Each month, the District distributes SNAP benefits to about 65,000 households. FNS
Monthly Report from DC for January 2020 (“Jan. 2020 FNS Report”) 2, Gov. MSJ, Exh. U, ECF
No. 138-23. ESA operates five neighborhood service centers throughout the District, as well as a
centralized Call Center. Deposition of Garlinda Bryant-Rollins (“Bryant-Rollins Dep.”) 18:7–
14. The vast majority (approximately 85%) of SNAP applications are processed in person at a
service center by what the District refers to as the “lobby unit,” with the remaining 15% handled
by the “non-lobby unit” over the phone. Id. at 21:14–21, 129:20–130:14; Dep. of Laura
Zeilinger (“Zeilinger Dep.”) 49:14–50:8, 56:4–17, 57:3–12; Dep. of Anthea Seymour (“Seymour
Dep.”) 129:30–131:8.
The District tracks and reports statistics on its timeliness in processing SNAP
applications in several ways. A team within the Department’s Division of Data Analytics
Research and Evaluation (“DARE”) pulls raw data from the agency’s internal database to create
statistical reports. See Dep. of Won-Ok Kim (“Kim Dep.”) 19:16–18, 43:3–9, 54:4–13, 269:1–7;
Dep. of Yogi Tripurneni 8:18–22, 12:14–17, 14:2–4, 15:6–11. These reports include the three
6 FNS metrics described above—the QC APT Rate, the State Timeliness Rate, and the FNS-366B.
See, e.g., Jan. 2020 FNS Report 2 (reporting the QC APT rate and the State Timeliness Rate);
District’s FNS-366B for Fiscal Year 2020, Quarter 1 (“FNS-366B for FY 2020 Q1”), Pl. MSJ
Reply, App. 2, Exh. 8, ECF No. 146-35. As will be explained further, the District has also
created a new metric called the “Adjusted State APT Rate,” which it has been reporting monthly
to the Court and FNS since the issuance of the Court’s partial preliminary injunction in May
2018. See, e.g., SNAP Application Processing Timeliness Data for Jan. 2020, ECF No. 134
(court report); Jan. 2020 FNS Report 2 (FNS report).
C. Procedural History
In October 2016, the District rolled out a new operating system for SNAP administration
known as the District of Columbia Access System (“DCAS”). Kim Dep. 52:9–11; Gov. Opp. to
Prelim. Injunction, Exh. E. Difficulties associated with implementing the new system caused
problems in the District’s administration of SNAP, including increased delays in processing
benefits applications. See, e.g., Pl. Prelim. Injunction Reply, Attach. 1, Exh. A at 1 (noting
“widespread technological problems we are seeing in activating Food Stamps benefits following
the transition to DCAS”). Indeed, the District’s rolling-average QC APT rate for October 2016
through March 2017 was estimated at 88.45%. 3 Based on that metric, FNS informed the District
in October 2017 that it was required to develop a CAP because its QC APT rate was below 90%.
3 This figure is based on a calculation of the upper bound of a 95% confidence interval (an estimated range of values of which FNS is 95% confident includes the true value) surrounding the FNS APT rate point estimate. The upper bound of the interval, rather than the point estimate, is used to identify and monitor poor timeliness. FNS June 2017 Memo 2.
7 Letter from Eric Ratchford to Anthea Seymour (“FNS Oct. 2017 Letter”) 1 (Oct. 23, 2017), Gov.
MSJ, Exh. R.
Suffering the adverse effects of DHS’s SNAP administration problems, a group of D.C.
residents and non-profit organization Bread for the City (“Bread”) brought suit in August 2017
against Laura Zeilinger in her official capacity as Director of DHS. 4 See Am. Compl. ¶ 15.
They sought injunctive and declaratory relief under 42 U.S.C. § 1983 on the grounds that the
District was violating their federal rights by (1) failing to process applications for benefits within
the SNAP Act’s mandatory timeframes; (2) failing to issue recertification notices on a timely
basis; and (3) failing to provide notice to households of application processing delays and their
right to a hearing. Am. Compl. ¶¶ 171–173.
Plaintiffs filed a motion for class certification contemporaneous with the complaint and
moved for a preliminary injunction shortly thereafter. The Court granted Plaintiffs’ motion for
class certification on March 28, 2018, see Garnett I, 301 F. Supp. 3d at 211–12 (certifying three
classes), and partially granted their motion for a preliminary injunction on May 31, 2018, see
Garnett II, 313 F. Supp. 3d at 150–51. The District followed with a motion to dismiss, which the
Court granted on August 23, 2018 only as to Plaintiffs’ third claim concerning notices of delays
and hearings and denied as to the remaining two claims. 5 The Court also entered the preliminary
injunction that same day. See Preliminary Injunction Order (Aug. 23, 2018). The injunction
required the District to “expeditiously enact any changes to policy statements, procedure
4 While Director Zeilinger is currently the sole defendant in this case, consistent with its prior opinions the Court will refer to the defendant here as “the District.” 5 Plaintiffs ask the Court to consider the two remaining claims together. Tr. of Hearing on Summ. J. Mots. 4:22–5:8 (July 28, 2020).
8 manuals, and internal directives” and to “conduct such training” as is necessary to ensure the
District’s full compliance (95% timeliness) with the SNAP Act’s deadlines for processing of
recertification applications within 18 months. Id. ¶¶ 2–3, 5. It also required the District to file
monthly reports containing information on its timeliness in processing regular initial, expedited
initial, and recertification applications as well as the status of its CAPs with FNS. Id. ¶¶ 6–7.
Following extensive discovery, the parties have cross moved for summary judgment.
The District also moves to dismiss Bread for the City as a plaintiff for lack of standing.
II. Legal Standards
Article III standing goes to a court’s subject-matter jurisdiction and is properly raised
under Federal Rule of Civil Procedure 12(b)(1). See Harbury v. Hayden, 444 F. Supp. 2d 19, 26
(D.D.C. 2006), aff’d, 522 F.3d 413 (D.C. Cir. 2008). “The objection that a federal court lacks
subject-matter jurisdiction may be raised by a party, or by a court on its own initiative, at any
stage in the litigation . . . .” Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006) (citation
omitted); see Fed. R. Civ. P. 12(h)(3). Because the case is now at summary judgment, “the
plaintiff can no longer rest on . . . mere allegations, but must set forth by affidavit or other
evidence specific facts [that establish its standing].” Lujan v. Defs. of Wildlife, 504 U.S. 555,
560–61 (1992).
As to liability, the Court may grant summary judgment if “the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). Where, as here, “both parties file cross-motions for summary
judgment, each must carry its own burden under the applicable legal standard.” Fay v. Perles, 59
F. Supp. 3d 128, 132 (D.D.C. 2014) (Cooper, J.) (quoting Ehrman v. United States, 429 F. Supp.
2d 61, 67 (D.D.C. 2006)). In other words, each party “bears the ‘initial responsibility of
9 informing the district court of the basis for its motion, and identifying those portions of the
pleadings, depositions[,] . . . admissions on files, [and] affidavits . . . which it believes
demonstrate the absence of a genuine issue of material fact.’” Hodes v. Dep’t of Treasury, 967
F. Supp. 2d 369, 372 (D.D.C. 2013) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)). To defeat a motion for summary judgment, the non-moving party must provide
“specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 324.
“[A] material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party” on a particular claim. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
As a remedy, Plaintiffs seek a permanent injunction compelling the District’s absolute
compliance with the SNAP Act’s timeliness requirements. “According to well-established
principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test
before a court may grant such relief.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391
(2006). A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that
remedies available at law, such as monetary damages, are inadequate to compensate for that
injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a
remedy in equity is warranted; and (4) that the public interest would not be disserved by a
permanent injunction. Id.
III. Analysis
A. Motion to Dismiss Claims by Bread for the City
To sustain subject-matter jurisdiction, “[a]t least one plaintiff must have standing to seek
each form of relief requested in the complaint.” Town of Chester, N.Y. v. Laroe Estates, Inc.,
137 S. Ct. 1645, 1651 (2017). At the threshold, Plaintiffs contend that the Court need not decide
10 whether Bread has standing for the suit to proceed because it is undisputed that the individual
named Plaintiffs have standing. Pl. Opp. 9–10; see, e.g., Bowsher v. Synar, 478 U.S. 714, 721
(1986) (declining to address the standing of other plaintiffs where at least one plaintiff had
standing). The Court previously declined to address Bread’s standing for that reason at the
motion-to-dismiss stage. Garnett III, 323 F. Supp. 3d at 68 n.7 (citing Ark Initiative v. Tidwell,
64 F. Supp. 3d 81, 92 (D.D.C. 2014)). The Government responds that the Court must now
decide Bread’s standing because it seeks relief distinct from the individual named Plaintiffs.
The Government is correct that the dispositive question is whether Bread is “pursu[ing]
relief that is broader than or different” than that sought by the individual named Plaintiffs. Little
Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, No. 19-431, 2020 WL 3808424,
at *8 n.6 (U.S. July 8, 2020). Bread’s request for declaratory and injunctive relief is identical to
that sought by the individual named Plaintiffs. Am. Compl., Request for Relief ¶¶ C–D; see also
O.A. v. Trump, 404 F. Supp. 3d 109, 138 (D.D.C. 2019) (“Where multiple plaintiffs assert
claims seeking precisely the same declaratory or injunctive relief, . . . and where the court has
subject matter jurisdiction to consider the claims of at least one of those plaintiffs, the court need
not address its jurisdiction to consider the claims of the remaining plaintiffs.”). As the District
points out, however, Bread also seeks attorney’s fees and costs under 42 U.S.C. § 1988(b). Am.
Compl., Request for Relief ¶ E. Other courts have held that each plaintiff must have standing in
order to recover attorney’s fees. See, e.g., Shaw v. Hunt, 154 F.3d 161, 166 (4th Cir. 1998)
(noting that “a plaintiff without standing will not be able to recover fees” under § 1988 “because
the possession of Article III standing is interwoven into the very concept of plaintiff status”).
Therefore, out of an abundance of caution and because the parties have briefed the issue
extensively, the Court will assess Bread’s standing. See Women’s Med. Ctr. of Providence, Inc.
11 v. Roberts, 512 F. Supp. 316, 320 (D.R.I. 1981) (“[T]he potential availability of attorney’s fees
turns the standing question raised by defendants’ motions to dismiss into a situation in which a
great deal ‘may be gained or lost (depending upon) the presence or absence of’ multiple
plaintiffs.” (quoting Doe v. Bolton, 410 U.S. 179, 189 (1973)))
The requirements of Article III standing are: (1) an “actual or threatened injury in fact”
(2) “that is fairly traceable to the alleged illegal action” and (3) is “likely to be redressed by a
favorable court decision.” Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990).
Furthermore, because Bread seeks injunctive and declaratory relief, it must show that it “is
suffering an ongoing injury or faces an immediate threat of injury.” Dearth v. Holder, 641 F.3d
499, 501 (D.C. Cir. 2011). The plaintiff, as the party invoking federal jurisdiction, bears the
burden of establishing standing “‘throughout all stages of litigation.’” Va. House of Delegates v.
Bethune-Hill, 139 S. Ct. 1945, 1950–51 (2019) (quoting Hollingsworth v. Perry, 570 U.S. 704,
705 (2013)) (emphasis added). At summary judgment, the plaintiff’s burden is to “set forth by
affidavit or other evidence specific facts” that support its standing. Lujan, 504 U.S. at 560–61.
Bread has met that burden.
1. Injury-in-Fact
An organization such as Bread may establish standing by showing that the challenged
practices have caused a “concrete and demonstratable injury to the organization’s activities.”
Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (holding that an organization had
standing to challenge racial steering practices that perceptibly impaired the organization’s ability
to provide housing counseling and referral services and drained the organization’s resources).
The D.C. Circuit “has applied Havens . . . to justify organizational standing in a wide range of
circumstances,” so long as two conditions are met. Abigail All. for Better Access to
12 Developmental Drugs v. Eschenbach, 469 F.3d 129, 133 (D.C. Cir. 2006); see Nat’l Fair Hous.
All. v. Carson, 330 F. Supp. 3d 14, 41 (D.D.C. 2018) (recognizing the Circuit’s “two-prong
inquiry”). First, the plaintiff must show that the challenged governmental action or inaction
“‘perceptibly impaired’ a non-abstract interest” of the organization. Nat’l Ass’n of Home
Builders v. EPA, 667 F.3d 6, 12 (D.C. Cir. 2011) (quoting Havens, 455 U.S. at 379). “Second,
the plaintiff must show that it ‘used its resources to counteract that harm.’” Elec. Privacy Info.
Ctr. v. Presidential Advisory Comm’n on Election Integrity, 878 F.3d 371, 378 (D.C. Cir. 2017)
(quoting People for the Ethical Treatment of Animals v. USDA (“PETA”), 797 F.3d 1087, 1094
(D.C. Cir. 2015)).
Bread for the City’s mission is to provide basic staples (food, clothing, and medical care)
and legal and social services to low-income D.C. residents to reduce the burden of poverty.
Bread for the City, Our Mission (last visited July 20, 2020),
https://breadforthecity.org/about/#mission-vision. Here, Bread has established that the District’s
SNAP administration deficiencies “[i]nhibit[] . . . [its] daily operations” by increasing its clients’
demand for food, SNAP-related legal services and counseling, and assistance with management
of Social Security Disability Insurance (“SSDI”) and Social Security Insurance (“SSI”) benefits.
Action All. of Senior Citizens of Greater Philadelphia v. Heckler, 789 F.2d 931, 938 (D.C. Cir.
1986). Specifically, the record contains evidence that beginning in October 2016 (when the
District’s administration of SNAP began experiencing widespread problems due to the new
computer system), Bread’s Legal Clinic saw more clients coming in with claims concerning
improper food stamp terminations and application delays, Bread’s Food Program experienced an
increased demand for food packages, and Bread’s Representative Payee Program’s clients made
more requests for additional funds for food from their own SSI and SSDI benefits. Pl. 3d Supp.
13 Interrog. Resp. ¶ 10, Def. MTD, Exh. A; Dep. of George Jones (“G. Jones Dep.”) 119:9–120:20;
121:3–122:7, Pl. MTD Opp., Exhs. A, E & F. The impairment of these non-abstract interests
satisfies the first prong of the Havens analysis. Nat’l Ass’n of Home Builders, 667 F.3d at 12.
As to Havens’ second prong, Bread has shown that it has taken concrete steps in response
to the District’s SNAP administration deficiencies. For one, Bread dedicated more staff time and
resources to meet the increased demand for the Legal Clinic’s assistance with SNAP-related
matters, including hiring a public benefits paralegal (who is paid $40,000 a year) and a law-
school volunteer (who had to be trained by paid employees) and diverting time of existing staff
members to SNAP-related matters. Pl. 3d Supp. Interrog. Resp. 25–26, 28. Bread also invested
significant staff time and resources into developing and implementing an internal referral system
to ensure that clients that initially engage with other SNAP programs receive help from the Legal
Clinic with SNAP-related matters. Id. at 28–29, 31. The District counters that “an
organization’s diversion of resources to litigation or to investigation in anticipation of litigation”
cannot create standing. Gov. MTD Reply 4 (quoting PETA, 797 F.3d at 1093); see also Nat’l
Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1434 (D.C. Cir. 1995) (“An organization
cannot . . . manufacture the injury necessary to maintain a suit from its expenditure of resources
on that very suit.”). True. But that principle does not apply where the “purportedly illegal action
increases the resources the group must devote to programs independent of its suit challenging the
action.” Spann, 899 F.2d at 27 (emphasis added). Here, the record establishes that Bread
undertook these additional expenditures on SNAP-related legal services and counseling “in
response to, and to counteract, the effects of the defendants’ alleged [statutory violations] rather
than in anticipation of litigation.” Equal Rights Ctr. v. Post Properties, Inc., 633 F.3d 1136, 1140
(D.C. Cir. 2011).
14 Nor is there credence to the District’s suggestion that Bread’s expenditures somehow
constitute self-inflicted injury under Fair Emp. Council of Greater Washington, Inc. v. BMC
Mktg. Corp. (“BMC”), 28 F.3d 1268, 1276 (D.C. Cir. 1994). Gov. MTD Reply 4. In BMC, the
D.C. Circuit held that the organizational plaintiff’s “diversion of resources to testing [BMC’s
housing discrimination]” was “self-inflicted; it result[ed] not from any actions taken by BMC,
but rather from the [plaintiff’s] own budgetary choices.” BMC, 28 F.3d at 1276. But, the
Circuit’s holding in that regard “assume[d] that BMC’s actions did not have any other effect on
the [plaintiff’s] programs independent of its efforts to increase legal pressure on possible open
housing violators” such that the organization’s “programs would have been totally unaffected if
it had simply refrained from making the re-allocation.” Id. at 1276–77. Bread’s injuries, by
contrast, are more analogous to the “increase [in] the number of people in need of counseling”
directly caused by BMC’s discrimination, which the Circuit found to be injury-in-fact. Id. at
1276.
Bread’s expenditures related to helping their clients deal with missing or late SNAP
payments are therefore cognizable harm under Havens. See, e.g., PETA, 797 F.3d at 1096
(recognizing organizational standing where plaintiff spent “more than $10,000 on staff attorney
time” “as a direct result of the USDA’s failure to regulate birds”).
Even if the record establishes that Bread suffered cognizable harm under Havens, the
District contends that Bread cannot rely upon “stale evidence” of past harm in order to establish
ongoing or future injury. Gov. MTD Reply 1–3. It invokes California Cattlemen’s Association
v. U.S. Fish & Wildlife Service, 369 F. Supp. 3d 141 (D.D.C. 2019), where the court concluded
that the plaintiffs had not shown ongoing or imminent injury from the agency processes that they
challenged because the processes were already complete, and there was “only conjecture and
15 hypothesis” that the agency would reinitiate the challenged processes in the future. Id. at 147.
Here, however, at least some of Bread’s increased expenditures on legal resources and
counseling related to SNAP administration are ongoing, see, e.g., Pl. 3d Supp. Interrog. Resp. 27
(averring that public benefits paralegal is paid $40,000 a year and “continues to work on food
stamps matters”); id. at 29 (averring that “Legal Clinic staff estimate that they spend
approximately two hours per month re-training staff, sending email reminders, and maintaining
the online referral system”), and there is no indication in the record that Bread will cease these
expenditures in the future. Bread has therefore shown that it suffers “ongoing injury” due to the
District’s alleged SNAP administration deficiencies. Dearth, 641 F.3d at 501.
2. Causation and Redressability
“An organizational plaintiff must, in addition to . . . establish[ing] cognizable harm under
Havens, satisfy the requirements for . . . the second and third elements of Article III standing—
causation and redressability.” Nat’l Fair Hous. All., 330 F. Supp. 3d at 42. “[C]ausation and
redressability ‘are closely related’ like ‘two sides of a . . . coin.’” West v. Lynch, 845 F.3d 1228,
1235 (D.C. Cir. 2017) (quoting Dynalantic Corp. v. Dep’t of Defense, 115 F.3d 1012, 1017
(D.C. Cir. 1997)). Although the two concepts are distinct—“causation focuses on the
‘connection between the assertedly unlawful conduct and the alleged injury’ whereas
redressability focuses on the ‘connection between the alleged injury and the judicial relief
requested,’” id. at 1235–36 (quoting Allen v. Wright, 468 U.S. 737, 753 n.19 (1984))—the Court
will address them together here because the judicial relief requested is an injunction against the
District’s allegedly unlawful conduct. The causation standard for Article III standing is not
particularly demanding. It “does not require that the defendant[’s] [conduct] be the most
immediate cause, or even a proximate cause, of the plaintiffs’ injuries; it requires only that those
16 injuries be ‘fairly traceable’ to the defendant. Attias v. Carefirst, Inc., 865 F.3d 620, 629 (D.C.
Cir. 2017). The Court assumes for the purposes of the standing analysis that Bread will secure
the relief that it seeks. See Fla. Audubon Soc. v. Bentsen, 94 F.3d 658, 664 n.1 (D.C. Cir. 1996).
The District contends that Bread’s injuries are not fairly traceable to the District’s
deficiencies in administering SNAP because numerous other factors—such as a change in the
law affecting cash benefits, the rising cost of food, Bread’s creation of an internal referral system
among its programs, and the need to serve furloughed government workers and homeless
individuals—also have affected D.C. residents’ demand for Bread’s services. Gov. MTD 12,
16–17, 19. The fact that it may be difficult to quantify exactly how much of Bread’s increased
expenditures is attributable to the District’s SNAP administration deficiencies as opposed to
these other factors does not defeat causation. See generally Competitive Enter. Inst. v. Nat’l
Highway Traffic Safety Admin., 901 F.2d 107, 113 (D.C. Cir. 1990) (“For standing purposes,
petitioners need not prove a cause-and-effect relationship with absolute certainty; substantial
likelihood of the alleged causality meets the test.”). For purposes of Article III standing, “it may
be enough that the defendant’s conduct is one among multiple causes.” Orangeburg, S.C. v. Fed.
Energy Regulatory Comm’n, 862 F.3d 1071, 1080 (D.C. Cir. 2017) (quoting 13A Charles A.
Wright, Arthur R. Miller & Edward H. Cooper, Fed. Practice & Procedure § 3521.5 (3d ed.
2008)). And here, “[c]ommon sense and basic economics tell us that” the District’s failure to get
SNAP benefits to Bread’s clients on time or at all will likely cause them to seek more food, legal
services, and counseling from Bread, which in turn will affect Bread’s resources. Carpenters
Indus. Council v. Zinke, 854 F.3d 1, 6 (D.C. Cir. 2017).
17 The Court therefore concludes that Bread has Article III standing to challenge
deficiencies in the District’s administration of SNAP and will proceed to analyzing the merits of
Plaintiffs’ claims.
B. Cross-Motions for Summary Judgment
As the Court held at the motion to dismiss stage, § 1983 provides a cause of action for
Plaintiffs to enforce the District’s compliance with the SNAP Act’s timeliness requirements.
Garnett II, 323 F. Supp. 3d at 71–75. At that stage, the Court declined to decide whether the
“policy or practice” standard for municipal liability set forth in Monell, 436 U.S. 658, applied to
this suit and invited the parties to address the issue in future briefing. Garnett II, 323 F. Supp. 3d
at 75. The parties now agree that Monell’s “policy or practice” standard applies to the Plaintiffs’
claims against Director Zeilinger. Gov. Reply 2–4; Tr. of Hearing on Mots. for Summ. J. (“MSJ
Tr.”) 7:2–11. Although the SNAP Act defines the District as a “State,” 7 U.S.C. § 2012(r), the
District of Columbia is considered a municipality for purposes of § 1983, see Act Now to Stop
War & End Racism Coal. & Muslim Am. Soc’y Freedom Found. v. District of Columbia (“Act
Now”), 846 F.3d 391, 413 (D.C. Cir. 2017) (“Both [S]tates and cities can be sued under section
1983, and for that purpose the District of Columbia is treated as a city.” (internal citations
omitted)); Salazar v. District of Columbia, 954 F. Supp. 278, 324 (D.D.C. 1996) (applying
Monell standard to the District’s compliance with Medicaid processing requirements even
though the statute defines D.C. as a “State”). And, Plaintiffs’ suit against Ms. Zeilinger in her
official capacity as a municipal officer “is equivalent to a suit against the municipality itself.”
Atchinson v. District of Columbia, 73 F.3d 418, 424 (D.C. Cir. 1996); see Kentucky v. Graham,
473 U.S. 159, 165 (1985) (holding that suits brought against individuals in their official
18 capacities “generally represent only another way of pleading an action against an entity of which
an officer is an agent” (quoting Monell, 436 U.S. at 690 n.55)).
Therefore, even “in an official-capacity suit” like this one, Plaintiffs must show that “the
entity’s ‘policy or custom’ . . . played a part in the violation of federal law.” Graham, 473 U.S.
at 166 (quoting Monell, 436 U.S. at 694); see also Los Angeles Cty., Cal. v. Humphries, 562
U.S. 29, 31 (2010) (holding that “the ‘policy or custom’ requirement also applies when plaintiffs
seek prospective relief [under § 1983], such as an injunction or a declaratory judgment”). Courts
conduct a two-step inquiry to assess municipal liability under § 1983. First, they must determine
whether the plaintiffs have established a predicate federal constitutional or statutory violation. If
so, they must decide whether a custom or policy of the municipality caused the violation. Baker
v. District Columbia, 326 F.3d 1302, 1306–07 (D.C. Cir. 2003).
Plaintiffs’ theory is that the District’s protracted failure to correct its deficiencies in
administering SNAP amounts to “deliberate indifference” to the risk of violating Plaintiffs’
federal rights. See, e.g., MSJ Tr. 7:17–23 (“[t]he plaintiffs have established that the defendant
had a custom and practice of being deliberately indifferent to . . . failure[s] to timely process
SNAP . . . applications”); Baker, 326 F.3d at 1306–07 (noting that municipal liability can lie
where the municipality fails “to respond to a need (for example, training of employees) in such a
manner as to show ‘deliberate indifference’ to the risk that not addressing the need will result
in . . . violations [of federal law]”); Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S.
397, 407 (1997) (“[A] plaintiff seeking to establish municipal liability on the theory that a
facially lawful municipal action has led an employee to violate a plaintiff’s rights must
demonstrate that the municipal action was taken with ‘deliberate indifference’ as to its known or
obvious consequences.”). According to Plaintiffs, the District was put on notice of its
19 deficiencies in timely processing SNAP applications when FNS sent the District a letter in
October 2017 subjecting it to a corrective action plan due to its poor APT rate. MSJ Tr. 8:8–15;
FNS Oct. 2017 Letter 1. Plaintiffs contend that the lack of improvement in the District’s
timeliness figures, after being made aware of the problem, suffices to establish the District’s
deliberate indifference. Contrary to Plaintiffs’ assertion, however, the record shows that the
District has undertaken significant efforts to improve SNAP application processing timeliness
and that, at least by some timeliness metrics, those efforts have been successful.
1. Predicate Violations of the SNAP Act’s Timeliness Requirements
As to the first step of the Monell analysis, the Court has previously held that the SNAP
Act requires absolute compliance with its timeliness requirements. See Garnett I, 301 F. Supp.
3d at 207–08; Garnett II, 313 F. Supp. 3d at 155. The Court is also cognizant, however, that
“with respect to the statutory timelines, ‘absolutely perfect compliance is unattainable.’” Garnett
II, 313 F. Supp. 3d at 159 (quoting Withrow v. Concannon, 942 F.2d 1385, 1388 (9th Cir.
1991)). In other words, “[t]here is . . . doubtless a point at which any failure of total compliance
is truly de minimis, where the [S]tate has come to comply ‘as strictly as is humanly possible.’”
Id. (quoting Withrow, 942 F.2d at 1388). The Court therefore defined “full compliance” in the
preliminary injunction order as 95% application processing timeliness, see Preliminary
Injunction Order 1, consistent with other courts that have issued injunctive relief in SNAP Act
compliance challenges, see, e.g., Preliminary Injunction Order 4 (defining “full compliance” to
“mean Defendant the federal processing time-frame in all cases except those individual and
isolated instances of delay that occur inevitably in an agency such as Defendant’s,” which the
Court set at 95%), Booth v. McManaman, No. 10-CV-680 (RAR) (D. Haw. Jan. 23, 2012);
Preliminary Injunction Order 5, Briggs v. Bremby, No. 3:12-CV-324 (VLB) (D. Conn. May 13,
20 2013) (defining “full compliance” as “compliance in all cases except those individual and
isolated instances of delay that occur inevitably in an agency such as Defendant’s,” which the
Court set at 97%).
In assessing whether the District violated the SNAP Act, the Court will consider its
performance from June 2016 through present, as the three certified classes include SNAP
applicants since June 1, 2016, see Garnett I, 301 F. Supp. 3d at 212–13. 6 The undisputed record
for that time period shows that the District has not achieved 100% timeliness in processing initial
regular, initial expedited, or recertification SNAP applications. The parties disagree, however, as
to the extent of the District’s noncompliance. As an initial matter, they dispute which metrics the
Court should use to measure the District’s timeliness; the primary source of disagreement is
whether the timeliness measures should exclude overdue applications whose processing has been
delayed beyond the applicable deadline due to the fault of the applicant.
A bit of background is needed to understand the nature of this dispute. As explained,
there are four timeliness metrics in the record: the three FNS metrics—the QC APT Rate, State
Timeliness Rate, and FNS-366B—as well as the Adjusted State APT Rate created by the
District. Two of these metrics—the State Timeliness Rate and the FNS-366B—include all
overdue applications, even where the reason for untimely processing is client delay. See FNS
June 2017 Memo 3, 5. The remaining two metrics—the QC APT Rate and the Adjusted State
APT Rate—exclude overdue applications that are attributed to client fault. See id. at 2
(explaining that the QC APT Rate excludes cases pended for missing verification); Tripurneni
6 The Court lacks data since the beginning of the Covid-19 pandemic when, with the parties’ consent, the Court suspended the District’s reporting requirements under the preliminary injunction. See Min. Order (Mar. 23, 2020); Min. Order (April 16, 2020); Min. Order (Aug. 20, 2020).
21 Dep. 73:5–13 (explaining that the Adjusted State APT Rate excludes overdue applications
attributed to client delay). Plaintiffs urge the Court to rely only on the State Timeliness Rate and
the FNS-366B, while the District contends that the QC APT Rate and Adjusted State APT Rate
are more accurate measures of timeliness under the circumstances here.
Under FNS regulations, an overdue application may be attributed to client fault “if the
household failed to complete the application process”—i.e., by not providing required
verification or completing the required interview. 7 C.F.R. § 273.2(h)(1)(i). However, the State
agency may attribute overdue applications to client fault only after taking certain mitigation
actions, such as offering assistance with completing the application and obtaining the required
verification. Id. Plaintiffs contend that the Court should not rely on the two timeliness metrics
that exclude client-delayed applications (QC APT Rate and Adjusted State APT Rate) because
the record does not show whether the District first took these mitigation steps before attributing
the delay to each individual applicant.
As to the QC APT Rate, the record belies Plaintiffs’ contention. As previously
explained, the QC APT Rate is based on a sample of active cases pulled by an agency’s QC team
each month. 7 Under FNS regulations, the District’s QC team is required to review individual
case files to “accurately determine if an application was properly pended due to a client’s delay
in providing verification.” FNS March 2016 Memo 7; 7 C.F.R. § 273.2(h)(1)(i). The District
has presented ample evidence that the agency arrived at its internal QC APT numbers in line
with this FNS protocol. As required by FNS regulations, DHS has a dedicated QC team that
7 FNS regulations require State agencies to examine a sample of active cases (those households currently receiving SNAP benefits) each month for quality control review. 7 C.F.R. § 275.12(a); FNS June 2017 Memo 1. State agencies must follow certain FNS procedures, handbooks, worksheets, and schedules in conducting these QC reviews. 7 C.F.R. § 275.14.
22 remains “arms length” from the operations team. Dep. of Ellen Wells (“Wells Dep.”) 19:16–
20:1, 45:9–22, Gov. MSJ, Exh. E. And, no fewer than four agency officials testified that QC
reviewers “pull cases from the SNAP population” using “a sampling methodology approved by
FNS” and “review them according to the specifications in FNS Handbook 310.” 8 Id. at 20:7–21,
90:1–13; see also Zeilinger Dep. 97:2–98:3 (testifying that QC reviewers “pull[] applications for
sample review and report[] directly to FNS whether those applications met the standards for
timeliness”); Seymour Dep. 121:8–16 (testifying that “QC works directly with FNS and FNS
identifies concern criteria that would be included in a sample, . . . and then based on that, QC
pulls the sample based on that criteria and that sample is reviewed by QC.”); Kim Dep. 169:1–9
(testifying that the QC “sample review goes through the entire system, including all the scanned
documents”); see generally Sept. 2018 CAP, ECF No. 130-6 at 1 (“[W]e closely monitor the QC
APT rate as it uses exactly the same methodology applied to calculate the FNS APT rate . . .”).
Plaintiffs point to nothing in the record that would rebut this testimony, which is entitled to a
presumption of good faith. See SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.
1991). And while the record is silent on whether FNS independently reviewed the District’s
most recent internal QC APT Rate figures, see MSJ Tr. 68:11–18; Pl. Stmt. Facts ¶ 54, nothing
suggests that FNS rejected or questioned the numbers, which it received monthly. 9 The Court
8 FNS Handbook 310 provides comprehensive procedures for States’ conducting QC reviews of their SNAP programs. 9 FNS requires States to submit QC APT data to enable its “reviewers to conduct a thorough and independent assessment of the case results reported to FNS.” SNAP Quality Control Policy Memo: 16-02 (Jan. 20, 2016), https://fns- prod.azureedge.net/sites/default/files/snap/QCPolicyMemo16-02.pdf; see also Kim Dep. 35:3–7. It is unclear from the record how often FNS conducts these independent reviews of QC results or publishes State QC APT rates. See MSJ Tr. 22:24–3, 49:24–50:1, 50:15–51:10. The most recent FNS-published QC APT rate data in the record precedes the Court’s entry of the preliminary
23 will therefore consider the District’s internal QC APT data in assessing the District’s SNAP
application processing timeliness.
The District-created Adjusted State APT Rate is similar to the QC APT Rate except that
it is based on the agency’s entire universe of SNAP applications rather than a QC sample. The
Adjusted State APT Rate is calculated in the same manner as the FNS State Timeliness Rate (the
total number of applications approved timely divided by the total number of applications), except
that the denominator for the Adjusted State APT Rate excludes overdue applications that are
pended for missing verification. See Jan. 2020 FNS Report 2; Tripurneni Dep. 73:5–13; D.C.
Application Processing Timeliness Corrective Action Plan (“Sept. 2018 APT CAP”) 3 (Sept. 1,
2018), Pl. MSJ, Exh. C; Gov. Resp. to Pl. Stmt. Facts ¶¶ 61–62. FNS has explained that the
State Timeliness Rate “will not adjust for properly pended applications” because “this protocol
uses a universe of certification data pulled from an eligibility system where all factors needed to
determine properly pended [applications] are unlikely to be available.” FNS March 2016 Memo
7. Nonetheless, “recognizing the aforementioned limitations, the District [has] attempted to
identify properly pended applications using the date when the customer provided the last
remaining verification item.” Sept. 2018 APT CAP 3. Specifically, the DCAS system deems an
overdue application as attributed to client fault if the system shows that the customer has
verification pending past the SNAP Act’s due date. Id.; Tripurneni Dep. 101:1–103:22.
Plaintiffs contend that the Adjusted State APT Rate is an unreliable measure of timeliness
because the DCAS system does not track whether the agency took the mitigation steps required
under 7 C.F.R. § 273.2(h)(1)(i) for each excluded application. The District concedes that DCAS
injunction. See Pl. Reply in Support of Prelim. Injunction, Attach. 2, Exh. B, ECF No. 45-29 (QC APT rates for October 2016–March 2017).
24 does not track this information. See Tripuneni Dep. 77:8–13, 78:6–79:5; Zeilinger Dep. 50:19,
69:3–10; Bryant-Rollins Dep. 70:9–20; Kim Dep. 109:1–10. But, the District counters, there is
no need for DCAS to confirm that the agency took the necessary mitigation steps for each
individual excluded application because the agency’s standard business processes ensure that
such steps were taken in the vast majority of cases.
The District has the better argument. As will be explained further, the undisputed record
shows that approximately 85% of the District’s SNAP applications are processed through a “one-
and-done” system. See Zeilinger Dep. 49:2–13; Seymour Dep. 129:20–130:14. Under this
system, Social Service Representatives (“SSRs”) interacting with customers coming into a
service center are trained to address all potential issues with the customer’s application on the
spot so that the agency can make an eligibility determination before the applicant leaves the
service center that day. See Decl. of Laura Zeilinger (“Zeilinger Decl.”) ¶¶ 69, 73–74, Gov.
Opp. to Prelim. Injunction, Exh. A; Zeilinger Dep. 49:2–21; Bryant-Rollins Dep. 61:3–62:6;
Seymour Dep. 130:2–131:8; Dep. of Carole Jones (“Jones Dep.”) 96:3–4. That includes
performing many of the mitigation steps required by FNS regulations. 7 C.F.R. § 273.2(h)(1)(i).
For one, the SSR reviews a manual checklist of required verifications with the customer. If
documents are missing, the SSR informs the customer what documents they need and how to
obtain them. Zeilinger Dep. 49:2–21; Bryant-Rollins Dep. 61:3–62:6; 103:18–104:5. As one
supervisor explained, if a customer has “had a fire or flood in their home” and verification
“document[s] are not available,” the agency will “offer additional assistance . . . with obtaining
those documents.” Bryant-Rollins Dep. 69:19–70:1. Moreover, DCAS is programmed to
automatically ping other databases (e.g., Social Security) for applicant information such as
income and immigration status. Id. 69:11–14; Jones Dep. 104:9–105:19. If verifications are still
25 missing, the customer is sent home with a checklist of outstanding verification requirements,
which indicates the types of documents that can satisfy each requirement. Gov. MSJ, Exh. K;
Jones Dep. 106:5–107:9. DCAS will also generate a formal notice of missing verification, which
is later mailed to the customer. Gov. MSJ, Exh. V at 3–5; Jones Dep. 142:7–22; Kim Dep.
106:2–5. This evidence suffices to establish that the necessary mitigation steps are usually taken
before an application is tagged as “pending verification” in DCAS, at least for the vast majority
of cases that are processed on a “one-and-done” basis.
Plaintiffs complain that evidence of the District’s usual protocol is insufficient to
establish that mitigation steps were taken in each individual case. But, as the District points out,
Plaintiffs have not pointed to a single case in which the District did not follow its established
protocol. To the contrary, the named plaintiffs testified that they had not experienced many
issues with the application or verification process. See, e.g., Harris Dep. 35:3–36:6 (explaining
that she had not had “difficulty verifying the information in [her] application or reporting any
changes”); Garnett Dep. 62:6–11 (explaining that she “normally do[esn’t] have a problem” with
getting her SNAP benefits). This case can therefore be distinguished from other cases where the
record contained evidence that specific plaintiffs’ applications were processed outside of
statutory requirements. See, e.g., Robertson v. Jackson, 766 F. Supp. 470, 474 (E.D. Va. 1991),
aff’d, 972 F.2d 529 (4th Cir. 1992), as amended (Aug. 12, 1992) (noting that the named plaintiff
“had been informed two weeks subsequent to her filing, in fact, that it would be 45–60 days
before her application would be processed” and that “other class members have had to wait as
long as, and in excess of, 60 days after their initial request for any assistance”).
The Court therefore finds the District’s internal QC APT Rate and Adjusted State APT
Rate data to be competent evidence for assessing the District’s compliance with the SNAP Act.
26 Briggs v. Bremby, No. 3:12-CV-324 (VLB), 2012 WL 6026167 (D. Conn. Dec. 4, 2012), aff’d,
792 F.3d 239 (2d Cir. 2015), on which Plaintiffs heavily rely, is not the contrary. There, the
court declined to consider data that excluded overdue applications that were attributed to client
fault. Id. at *16–17. However, that was not because the court considered the data to be
inherently misleading or unreliable. See id. at *16 (“The Court agrees with Defendant that it
would inappropriate to find [the agency] in violation of Sections 2020(e)(3) and (9) where the
delay was truly caused by the applicant.”). Rather, the court found the specific dataset at issue to
be insufficient because the agency “fail[ed] to provide any evidence indicating what percentage
of the delay is attributable to applicants under the rubric of FSA regulations.” Id. Here, by
contrast, the District has presented sufficient evidence from which the Court can roughly
estimate the percentage of overdue applications that is properly attributable to client delay.
These evidentiary issues resolved, the Court will proceed to evaluating the District’s timeliness
in processing initial and recertification applications for benefits.
a. Initial Application Processing Timeliness
Following FNS’s lead, see, e.g., FNS Oct. 2017 Letter 1 (relying upon the District’s QC
APT data to impose a CAP), the Court will focus on the QC APT rate to measure the District’s
timeliness in processing initial SNAP applications. See generally Tripoli Rocketry Ass’n, Inc. v.
Bureau of Alcohol, Tobacco, Firearms, & Explosives, 437 F.3d 75, 77 (D.C. Cir. 2006) (“This
court routinely defers to administrative agencies on matters relating to their areas of technical
expertise.”). Because the QC APT rate is based on an individualized review of case files
conducted pursuant to a uniform protocol, it is most likely to accurately capture an agency’s true
performance in timely processing applications. See FNS March 2016 Memo 7 (noting that “a
more thoroughly determined APT rate results from the QC process”).
27 For October 2016 through March 2017, the District’s six-month rolling average QC APT
rate was 88.45%. Gov. MSJ, Exh. R at 1. The District’s most recent internal data shows a
rolling average QC APT rate of approximately 95.05% for March through September 2019. 10
Gov. MSJ, Exh. U at 2. That change reflects a significant improvement in the District’s initial
SNAP application processing timeliness. Indeed, FNS considers 95% QC APT or higher to be
acceptable performance. FNS June 2017 Memo 2. 11 The rolling average Adjusted State APT
Rate for March through September 2019 was 95.65%. Jan. 2020 FNS Report 2. 12 Although the
Adjusted State APT Rate is not based on an individualized review of case files in a sample, its
logic mimics that of the QC APT Rate. The fact that the District’s Adjusted State APT Rate is
very close to the QC APT Rate for the same time period therefore corroborates that the District is
performing at around 95% timeliness in initial application processing.
The metrics that include pended applications for client delay reflect less improvement.
The District’s rolling average State Timeliness Rate for March through September 2019 was
88.07%, compared to a rolling average of 87.1% for April 2017 through September 2017. Sept.
10 The Court approximated a six-month rolling average by taking the average of the monthly QC APT rates reported for March through September 2019. Jan. 2020 FNS Report 2. March through September 2019 is the most recent six-month period for which data on all relevant metrics is available. 11 Plaintiffs point out that FNS still has not lifted the District’s CAP, which it is supposed to do if a State’s APT rates reach 95%. They suggest that FNS has not done so because it finds the District’s internal APT rates to be unreliable. However, there is nothing in the record that supports this explanation or provides any other explanation. The Court therefore declines to speculate as to why FNS has not yet lifted the CAP. As mentioned, FNS’s most recent correspondence with the District indicates its satisfaction that the District’s “timeliness rate has improved and is stable.” FNS Mar. 2020 Letter 1. 12 Again, the Court approximated a six-month rolling average by taking the average of the monthly Adjusted State APT rates reported for March through September 2019. Jan. 2020 FNS Report 2.
28 2018 CAP 1. The most recent FNS-366B before the Court when it entered the preliminary
injunction (for the first quarter of fiscal year 2018) showed that the District had approved
94.88% of initial applications on time. Garnett II, 313 F. Supp. 3d at 156–57 (citing Gov.
Surreply, Exh. B). 13 According to the most recent FNS-366B in the record now (for the first
quarter of fiscal year 2020), the District approved 87.18% of initial applications on time. Pl.
Reply, App. 2 & Exh. 8. 14 Notably, only 3% of the overdue initial applications were pending for
more than 30 days, id., compared to 7% in Fiscal Year 2018 Quarter 1.
As the Court has explained, however, these metrics include applications pended due to
missing verification, and the Court finds its reasonable to assume that many, if not most, of the
included applications were overdue because the client did not submit the required verification.
See Briggs, 2012 WL 6026167, at *16 (“[I]t would inappropriate to find [the agency] in violation
of Sections 2020(e)(3) and (9) where the delay was truly caused by the applicant.”). Making that
assumption, the District’s true initial application processing rate is very likely in the ballpark of
90% and 95%. 15 Although that is certainly close to de minimis noncompliance, a reasonable
13 This figure includes both regular and expedited applications. To calculate this rate from the FNS-366B report, the Court first determined the total number of applications approved overdue by adding together the applications approved overdue 1–30 days (Column D in the form), approved overdue 31–60 days (Column E), approved overdue 61–90 days (Column F) and approved overdue 91+ days (Column G) for each category of applications (“total” applications, which encompasses all types; initial; recertification; or expedited). The Court then divided this sum by the total number of approved applications (Column A) for each category of applications and multiplied the result by 100 to arrive at a percent. Garnett II, 313 F. Supp. 3d at 157 n.6. 14 The District’s timeliness for subsequent fiscal quarters has varied from 85.57% to 89.97%. See Pl. MSJ Reply, App. 2 & Exhs. 1–7. 15 At the preliminary injunction stage, the Court relied on both the QC APT rate and the raw FNS-366B data to assess the District’s initial application processing timeliness. See Garnett II, 313 F. Supp. 3d at 156. At that stage, however, neither party raised the issue of whether the proper metrics should include applications pended due to client delay. Based on the evidence in
29 juror might conclude otherwise. Plaintiffs have therefore created a genuine issue of material fact
as to the predicate SNAP Act violations for initial applications.
b. Recertification Application Processing Timeliness
The record also shows that the District has made progress with recertification application
processing timelines. As the Court has previously noted, the QC APT rate only captures initial
application processing timeliness; it does not capture any data pertaining to recertification
applications. Garnett II, 313 F. Supp. 3d at 158. When the Court entered the preliminary
injunction, it relied primarily on the FNS-366B to measure recertification application processing
timeliness. Based on the District’s FNS-366B for Fiscal Year 2017 Quarter 1, the Court
determined that District was only processing 59.28% of recertification applications on time.
Garnett II, 313 F. Supp. 3d at 158 (citing Gov. MTD Surreply, Exh. B). The District’s most
recent FNS-366B (for Fiscal Year 2020 Quarter 1) shows that it has increased its recertification
application timeliness to 84.20%. Pl. MSJ Reply, App. 2 & Exh. 8. This apples-to-apples
comparison shows a dramatic improvement in the District’s timely processing of recertification
applications. Moreover, the most recent FNS-366B shows that only a single overdue application
was pending for more than 30 days, see id., which is a marked improvement from Fiscal Year
2018 Quarter 1, where 4% of overdue recertification applications were pending for that long, see
Gov. MTD Surreply, Exh. B.
The Court now has an additional data source to measure the District’s recertification
timeliness. As mentioned, the preliminary injunction ordered the District to provide monthly
the present record, the Court finds that the raw FNS-366B data is less likely than the QC APT Rate data to reflect the District’s true application processing timeliness because it includes all overdue applications, even where the reasons for the delay in processing is missing verification.
30 reports with data on processing of initial, recertification, and expedited applications. The data
from those monthly reports show a rolling average recertification timeliness rate of 95.57% for
September 2019 through February 2020. Pl. Reply, App. 1, tbl. 3, ECF No. 146-26. Again,
Plaintiffs complain that the timeliness rates calculated in these reports are inaccurate because
they improperly exclude applications due to client fault. But even adding all of the excluded
recertification applications back in, the District’s rolling average recertification processing
timeliness rate from September 2019 through February 2020 was 90.93%. Id. Considering all of
the relevant evidence, the District’s true recertification application timeliness rate is likely in the
ballpark of high 80s to low 90s. Based on the record as a whole, then, a reasonable juror could
conclude that the District has not been fully compliant with the SNAP Act’s deadlines for
processing both initial and recertification applications.
2. Whether a Policy or Practice of the District Caused the SNAP Act Violations
Assuming that Plaintiffs have established a genuine issue of material fact as to the
District’s predicate violations of the SNAP Act, the more difficult question is whether “any
District custom or policy was the moving force” behind the violations. Act Now, 846 F.3d at
413 (internal quotation marks omitted). As explained, Plaintiffs’ theory is one of deliberate
indifference. To prevail on such a theory, Plaintiffs must establish that municipal
decisionmakers continued to adhere to “an approach that they know or should know has failed to
prevent tortious conduct by employees.” Brown, 520 U.S. at 407. But here, the record shows
that the District took numerous steps to improve its SNAP application processing timeliness once
it was made aware of the system’s deficiencies.
Following its receipt of the October 2017 FNS Letter calling for a CAP, the agency
conducted an extensive “root cause” diagnosis of SNAP administration. Issues were fielded
31 from customer complaints (both in-person and through the help desk), community partners and
advocates, and internal analysis and escalated to high-level agency management. Seymour Dep.
81:6–84:11. A significant product of this root cause analysis was the District’s implementation
of a “one-and-done” system for customer interactions. Id. 129:20–130:1. For applicants coming
into a service center, the agency now endeavors to make an eligibility determination before the
applicant leaves the service center that day. See Decl. of Laura Zeilinger (“Zeilinger Decl.”)
¶¶ 69, 73–74. 16 The District therefore has trained SSRs to address all potential issues with a
customer’s application on the spot, including conducting the interview and helping them find
missing verification. Zeilinger Dep. 49:2–21; Bryant-Rollins Dep. 61:3–62:6; Seymour Dep.
130:2–131:8. If the clients’ applications were fully processed all in one setting, the District
reasoned, customers would not have to “come back to us with this piece of paper or that piece of
paper,” and the District’s APT rate would improve. Seymour Dep. 130:15–131:8. Since its
initial rollout, the new system has been “in a constant state of improvement” and “adjusted based
on HR and union feedback.” Long Dep. 276:15–22.
DHS has also overhauled its recertification application process. In the past, the agency
sent customers “a letter that says you must come on this day [to do your recertification interview]
and that’s it,” meaning that a client’s only option for filing for recertification would be to arrive
on the specified day, fill out the long recertification application form, and potentially wait all day
and not be seen. Deposition of Edward Wilkins Long III (“Long Dep.”) 40:4–9, 40:20–41:7. To
relieve customers of the burden of returning to the service center every year, the agency now
16 Upon arrival at a service center, customers are given two options: either they can wait for a face-to-face interview that day or they can submit their applications and documents and someone will call them from the lobby within 24 hours to conduct their interview. Bryant- Rollins Dep. 45:6–9.
32 sends the recertification application form to the customer with the notice of expiration and has
obtained a waiver from FNS that permits recertification interviews to be conducted over the
phone. Long Dep. 39:6–41:12.
The Department also brought on a technical expert to fix the problems that it was having
with notice generation. Platt Dep. 64:19–21. That expert established metrics to monitor notice
generation to test whether technical fixes worked and a reconciliation process for ensuring that
DHS’s print vendor was actually printing and sending the notices it was provided. Platt Dep.
67:7–68:6. The new system “went through refinement” and “evolved over time” with input from
municipal decisionmakers. Id. at 248:13–21, 270:15–21 (explaining that “timeliness was always
a discussion item as a problem that needed to be addressed” at the agency’s twice weekly
meetings). These reforms appear to have improved customers’ experiences applying for
recertification. One of the named Plaintiffs, for example, testified that the agency “did send
[him] a notice” about his most recent recertification and that he “ha[sn’t] had any problems
lately” with filing for recertification. Dep. of James Stanley (“Stanley Dep.”) 27:8–22, 34:10–
11, 35:1–3; see also Dep. of Kathryn Harris (“Harris Dep.”) 31:8–35:8 (testifying that she prefers
completing the recertification application over the phone rather than having to go to a service
center and that she has not had difficulty verifying information for her recertification
applications).
Moreover, the record shows that the District has given SSRs ongoing “specific training
about how to” process applications timely. Robinson v. Pezzat, 818 F.3d 1, 13 (D.C. Cir. 2016)
(distinguishing Smith v. District of Columbia, 413 F.3d 86, 99 (D.C. Cir. 2005), “where the
District had provided employees with no relevant training”); see generally Long Dep. 300:4–15
(explaining that “the caseworkers [were the agency’s] second most important stakeholder group
33 after District residents who are receiving benefits” and that “they have very hard jobs” and the
agency’s “objective [was] to make their jobs less painful”). A general refresher training was
given to DHS employees to “[e]nsure an understanding of the policies that dictate timely
processing to increase timeliness” followed by targeted trainings to “ensure specific deficiencies
are addressed.” Pl. Reply, Exh. J at 1; see also Wells Dep. 194:10–195:5 (explaining that the
agency provided “a quick shot workshop refresher on SNAP timeliness requirements” to all staff
in February 2018). More generally, the record reveals that when the QC team sees a high
number of errors in a particular activity, that information is provided to the training team and
incorporated into “refresher trainings” and built into the agency’s biannual corrective action
plan. Wells Dep. 41:16–42:1, 48:15–49:3. Similarly, the agency “immediately roll[s] out a
training” when it “get[s] a new policy directive from FNS.” Id. at 42:8–12.
Plaintiffs present little evidence to rebut the District’s extensive testimonial and
documentary evidence of its efforts to improve timeliness, which is entitled to a presumption of
good faith. See Kretchmar v. FBI, 882 F. Supp. 2d 52, 56 (D.D.C. 2012) (“Agency declarations
are accorded ‘a presumption of good faith,’ and to rebut them plaintiff ‘must point to evidence
sufficient to put the Agency’s good faith into doubt.’” (quoting Long v. DOJ, 450 F. Supp. 2d
42, 54 (D.D.C. 2006); Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981))).
Notably, Plaintiffs do not cite any deposition testimony from the individual named plaintiffs that
documents existing problems with the District’s administration of SNAP. To the contrary, the
portions of the plaintiffs’ deposition testimony cited by the District suggest that D.C. residents
are seeing improvements in their experience applying for SNAP benefits. See, e.g., Harris Dep.
31:8–35:8 (testifying that she is happy that the District switched to allowing her to apply for
recertification over the phone rather than having to go to a service center and that she has not had
34 difficulty verifying information for her recertification applications); Stanley Dep. 27:8–22,
34:10–11, 35:1–3 (testifying that the agency “did send [him] a notice” about his most recent
recertification and that he “ha[sn’t] had any problems lately” since March 2018 with filing for
recertification).
The only affirmative evidence that Plaintiffs point to are past letters from FNS citing the
District for failing to provide notices of required verification. Pl. MSJ 23. But, that evidence is
outdated—some of the letters are from as early as May 2018. See Pl. MSJ, Exh. G. Although
FNS has not officially removed the District from the CAP, the record indicates that FNS is
presently satisfied with the District’s efforts to address application processing timeliness. After
extensive back-and-forth with the District, FNS accepted the District’s proposed CAP in January
2020 and specifically noted that “the District’s plan to correct errors related to the timel[y]
issuance of correct notices is acceptable.” See Letter from Eric Ratchford to Anthea Seymour
(“FNS Jan. 2020 Letter”) 1–2 (Jan. 29, 2020), Gov. MSJ, Exh. P. And, in FNS’s most recent
correspondence to the District in March 2020, FNS commented that the District’s ‘timeliness rate
has improved and is stable” and “encourage[d] the District to balance the focus on timeliness
with an increased attention on payment accuracy and being stewards of public funds.” 17 Letter
17 As FNS recognizes, there is a trade-off between the amount of time that agency employees can spend processing each application and the number of customers that the District can serve in one day. Compare Jones Dep. 103:7–12 (testifying that the average transaction time is about two hours at the Taylor Street Center), with Harris Dep. 42:10–14 (suggesting that the District “try to streamline the application process so that the participants as well as the social workers would not have to spend so much time with one client”). Plaintiffs point out that the wait times at some of the District’s service centers can be very long and that many customers may be turned away. See, e.g., Harris Dep. 42:4–9 (testifying that “participants have to wait so very, very long is all kinds of weather and they have to wait sometimes inside and outside” of service centers); Pl. MSJ, Exh. N; Bryant-Rollins Dep. 70:2–72:20, 79:5–80:16. But, while no doubt frustrating, long wait times for customers does not bear on whether the District was deliberately indifferent to Plaintiffs’s rights to timely processing of benefits applications. The
35 from Eric Ratchford to Anthea Seymour (“FNS Mar. 2020 Letter”) 1 (Mar. 6, 2020), Gov.
Notice, ECF No. 152; see also Seymour Dep. 241:13–242:3 (noting that FNS is “pleased” with
and “cognizant of [the District’s] strategies to continue to work on our APT and to maintain the
level”).
In light of the record as a whole, the Court finds that the District’s approach is reasonably
designed to achieve full compliance with the SNAP Act’s timeliness requirements. SNAP is a
complex program to manage, and there is no perfect blueprint for ensuring perfect compliance. 18
This is hardly a case in which “in light of the duties assigned to specific officers or employees
the need for more or different training is so obvious, and the inadequacy so likely to result in the
violation of [federal] rights, that the policymakers of the city can reasonably be said to have been
deliberately indifferent to the need.” City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989);
compare with, e.g., Salazar, 954 F. Supp. at 331 (finding an agency’s practices so inadequate as
to establish deliberate indifference where the agency “deliberately assigned only one
person . . . to run the entire [assistance] program” and completely failed to monitor compliance).
Moreover, the efficacy of the District’s improvement efforts is borne out in its recent
timeliness results. To be sure, there are no “numerical standard[s] control[ling] the
District’s choice to have SSRs spend more time with each application so as to ensure that they can be processed “one-and-done” (and therefore, timely) does not reflect deliberate indifference as to the Plaintiff’s statutory rights. 18 Indeed, a study conducted by FNS of all 50 States and the District of Columbia “did not find any specific management practice that led to a statistically significant difference in APT rate.” Gov. MSJ, Exh. T at 2. Some strategies associated with high APT rates were: (1) establishing clear performance targets or goals for improving APT; (2) holding workers accountable for overdue cases in the worker’s performance reviews or decisions about the worker’s employment status; (3) training staff about new application processing procedures; and (4) monitoring APT performance either weekly or monthly. Id. The District appears to have implemented many of these strategies.
36 determination of whether incidents of wrongful behavior cumulatively show a pattern amounting
to a custom or policy.” Carter, 795 F.2d at 124. The Court finds it significant, however, that the
District’s current timeliness in processing initial and recertification applications—though not
perfect—does not come close to non-compliance benchmarks in analogous cases. Take the level
of noncompliance with regulatory statutes that other courts have found to constitute deliberate
indifference. In Salazar v. District of Columbia, 954 F. Supp. 278 (D.D.C. 1996), retired Judge
Kessler of this court confronted a similar provision in the Medicaid statute that required absolute
compliance with deadlines for processing applications. Id. at 324. Applying the municipal
liability standard, Judge Kessler found that the District was deliberately indifferent to the
plaintiffs’ statutory rights where it had “repeatedly failed to process large numbers of Medicaid
applications within” the statutory deadline—i.e., timeliness of 50% for one category of
applications and 67% for another category. Id. at 325 (emphasis added).
Nor is the District’s noncompliance on par with that in other SNAP Act cases where
courts granted injunctive relief. See, e.g., Briggs v. Bremby, No. 3:12-CV-324 VLB, 2012 WL
6026167, at *17 (D. Conn. Dec. 4, 2012), aff’d, 792 F.3d 239 (2d Cir. 2015) (granting
preliminary injunction where Connecticut’s SNAP application processing timeliness ranged from
59 to 81%); Booth v. McManaman, 830 F. Supp. 2d 1037 (D. Haw. 2011) (granting preliminary
injunction where Hawaii’s SNAP application processing timeliness ranged from 69 to 84%);
Robertson, 766 F. Supp. at 474 (granting permanent injunction where Virginia’s statewide SNAP
application process timeliness was less than 80%, with some counties’ timeliness under 50%).
Notably, none of these cases involved municipalities, so the courts directly applied the SNAP
Act’s absolute liability standard, rather than the deliberate indifference standard applicable
37 here. 19 Finally, a recent FNS research report shows that only ten States have initial QC APT
processing rates of more than 95%; 19 States are between 90% and 95%; and 22 States are below
90%. Gov. MSJ, Exh. T at 1. Compared to other States, then, the District’s timeliness
completion rate does not stand out. All in all, even though the record reflects some
noncompliance with the SNAP Act’s timeliness requirements, it is not of such a magnitude to
establish the District’s deliberate indifference to the Plaintiffs’ statutory rights.
Taking a different tack, Plaintiffs suggest that the District has been deliberately
misleading FNS as to the extent of its untimeliness. They first point to the District’s creation of
the Adjusted State APT Rate, which excludes applications pended for missing verification, as an
effort to inflate the District’s timeliness numbers. But the record shows that the District has been
transparent with FNS about how the Adjusted State APT Rate is calculated and its limitations.
See, e.g., Sept. 2018 APT CAP 3 (explaining to FNS that “recognizing the aforementioned
limitations, the District [has] attempted to identify properly pended applications using the date
when the customer provided the last remaining verification item”); FNS Monthly Report from
D.C. for Sept. 2018 (“FNS Sept. 2018 Report”) 6, Gov. MTD Reply, Exh. A, ECF No. 135-1
(reporting the Adjusted State APT Rate and explaining that it “exclude[s] applications where the
number of days from the application filing date to the latest verification clearance date exceeds
the required timeframe” and “consider[s] them delayed due to customer’s delayed submission of
documentation”). Although FNS told the District in January 2020 that it “may” remove the
Adjusted State APT Rate from its monthly reports, FNS. Jan. 2020 Letter 4, there is no
19 Robidoux v. Kitchel, 876 F. Supp. 575 (D. Vt. 1995), granted summary judgment to the plaintiffs on liability where Vermont’s most recent SNAP application timeliness ranged from 90% to 93.5%. Id. at 578. In making that determination on liability, however, the court applied the SNAP Act’s strict liability standard rather than Monell’s custom or policy standard.
38 indication that FNS considered the Adjusted State APT Rate to be deliberately misleading or
inappropriate for the District to report.
Plaintiffs also point to an email chain from October 2018 in which Won-ok Kim, DHS’s
Deputy Administrator of Data Analytics Research and Evaluation, purportedly attempted to hide
the extent of the District’s document-processing backlog from FNS. In the email chain, Ms. Kim
forwarded an email from FNS to a group of DHS employees seeking advice on how to respond
to FNS’s request for backlog data. Pl. MSJ Reply, Exh. P at 6–7. Ms. Kim stated, “I know that
we have a bunch of backlog documents in DIMS . . . but I cannot tell them we have thousands of
backlog documents sitting in DIMS” and “I don’t know how to describe here without revealing
the problem we have. Appreciate if you can come up with some language to explain why we
cannot provide DIMS backlog data.” Id. at 7–8. Read in the light most favorable to Plaintiffs, a
reasonable juror could infer that Ms. Kim was trying to conceal backlog information from FNS.
But, a “single isolated incident” of misconduct (even if one could call it that) can establish
municipal liability only if attributed to a municipal policymaker with final decision-making
authority. City of Oklahoma City v. Tuttle, 471 U.S. 808, 821 (1985); see also Triplett v.
District of Columbia, 108 F.3d 1450, 1453 (D.C. Cir. 1997) (“The only acts that count . . . are
ones by a person or persons who have ‘final policymaking authority [under] [S]tate law.’”
(quoting Jett v. Dallas Independent School Dist., 491 U.S. 701, 737 (1989)) (second alteration in
original)); Blue v. District of Columbia, 811 F.3d 14, 19 (D.C. Cir. 2015) (“[U]nder certain
circumstances, a single decision by a municipal official with final policymaking authority can
constitute a municipal policy.”). Here, two employees who outrank Ms. Kim—the Chief
Information Officer and Assistant Deputy Administrator of ESA, see D.C. Dep’t of Human
Servs. Senior Mgmt. (Dec. 2019), https://dccouncil.us/wp-content/uploads/2020/01/Attachment-
39 1-DHS-Org-Chart.pdf—responded to Ms. Kim that the agency should be transparent with FNS
about the backlog problem. See, e.g., Pl. MSJ, Exh. P at 5 (Chief Information Officer explaining
that “I actually think we should just explain the problem as it is instead of trying to explain it
without revealing the problem. FNS already know[s] it’s a problem we are working to address”);
id. at 4 (Assistant Deputy Administrator of ESA explaining that “we are on the same page . . .
with explaining the as-is state and our plans to address the backlog”). And, there is no evidence
in the record that the backlog was actually concealed from FNS in the end or of how the backlog
relates to the District’s application processing timeliness. Moreover, unrebutted testimony from
other agency officials supports the conclusion that the District generally has been transparent in
its dealings with FNS. See, e.g., Long Dep. 264:10–17, 266:2–9 (testifying that “there’s no
situation [where] somebody said this data is inaccurate, let’s give it to FNS anyway” and that no
one discussed “strategies for altering the data logic to improve the rate of timely processing”).
Thus, the October 2018 email chain does not establish the District’s deliberate indifference.
IV. Conclusion
The evidence before the Court establishes that the District of Columbia currently
processes somewhere between 90 and 95 percent of SNAP benefit applications within the
deadlines mandated by the SNAP Act. And the vast majority of the delayed applications are
resolved within 30 days of the deadlines. The Court appreciates that any delayed application
threatens the loss of food and nutrition for needy families. At the same time, some minimal
degree of untimeliness is inevitable in a sprawling public benefits program like SNAP.
Were the District a State, even a 90 to 95 percent timeliness rate likely would not be
sufficient to avoid summary judgment for violating Act, which requires strict adherence to the
statutory deadlines. Because it is not a State, however, Plaintiffs must show that the District’s
40 untimely processing of initial or recertification applications is attributable to a “persistent,
pervasive practice, attributable to a course deliberately pursued by official policymakers.”
Salazar, 954 F. Supp. at 324 (quoting Carter, 795 F.2d at 125–26). They have not created a
genuine dispute of fact on that question. Unlike in other cases finding deliberate indifference on
the part of municipal officials, the record is clear that the District made extensive and sustained
efforts at improvement once it was put on notice—by both Plaintiffs and FNS—of the
deficiencies in its SNAP application processing timeliness, which stemmed in part from the roll-
out of a new computer system. Compare id. at 326 (finding deliberate indifference based on the
agency’s failure to rectify problems in Medicaid application processing after “high-level DHS
managers have known about [the agency’s] recurrent backlogs of NPA Medicaid applications for
several years”), and M.J. v. District of Columbia, 401 F. Supp. 3d 1 (D.D.C. 2019) (finding that
a complaint adequately alleged deliberate indifference based on “numerous public reports
throughout the complaint demonstrating that defendants were aware of the need for
comprehensive community-based care, and the inadequacy of the services the District currently
offers”), with Westfahl v. District of Columbia, 75 F. Supp. 3d 365, 378 (D.D.C. 2014) (Cooper,
J.) (“[S]pecific inadequate practices do not necessarily evidence a deliberate indifference to
constitutional violations if the city’s overall policies demonstrate that it has undertaken efforts to
reduce the illegal use of force[.]”). Plaintiffs therefore have failed to establish that the District’s
untimely processing of some SNAP applications is the product of a municipal policy or practice
of deliberate indifference.
Accordingly, the Court will vacate its prior preliminary injunction and grant summary
judgment to the District. The Court need not reach Plaintiffs’ request for a permanent injunction.
A separate order follows.
41 Christopher Digitally signed by Christopher R. Cooper
R. Cooper Date: 2020.09.09 18:32:54 -04'00'
Date: ____September 9, 2020____ CHRISTOPHER R. COOPER United States District Judge
Related
Cite This Page — Counsel Stack
Garnett v. Zeilinger, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garnett-v-zeilinger-dcd-2020.