1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ABDALLA FAIZ JOSEPH, et al., Case No. 20-cv-02955-JD
8 Plaintiffs, ORDER RE MOTION TO DISMISS 9 v. AND EQUITABLE TOLLING
10 UNITED STATES OF AMERICA, Re: Dkt. Nos. 7, 18 Defendant. 11
12 13 A retail food store that “feels aggrieved” by a final agency determination disqualifying it 14 from participation in the Supplemental Nutrition Assistance Program (SNAP) “may obtain judicial 15 review thereof by filing a complaint against the United States . . . within thirty days after the date 16 of delivery or service of the final notice of determination.” 7 U.S.C. § 2023(a)(13). Plaintiffs’ 17 motion for equitable tolling, Dkt. No. 7, and the United States’ motion to dismiss under Federal 18 Rule of Civil Procedure 12(b)(1), Dkt. No. 18, raise the same question of statutory interpretation: 19 may missing the 30-day deadline be excused, and if so, should it be in this case? 20 The Court heard oral argument on the motion to dismiss. Dkt. No. 31. The motion for 21 equitable tolling was deemed suitable for decision without a hearing. Civil L.R. 7-1(b). Because 22 the law, facts, and arguments for these motions overlap substantially, this Order disposes of both. 23 The salient facts are undisputed. As alleged in the complaint, plaintiff Save More Food 24 Market (which plaintiffs call Sav More) is a San Francisco store owned by plaintiff Joseph. Dkt. 25 No. 1 ¶ 1. The United States Department of Agriculture, the agency in charge of administering the 26 SNAP program, permanently disqualified plaintiffs from participating in SNAP in September 27 2019. Dkt. No. 1 ¶ 6. The USDA concluded, on the basis of a “data analysis” of SNAP 1 30-32. Trafficking is defined in pertinent part as “buying, selling, stealing, or otherwise effecting 2 an exchange of SNAP benefits” for cash or consideration other than eligible food purchases. 7 3 C.F.R. § 271.2. 4 Plaintiffs, who had no prior history of problems with SNAP, unsuccessfully contested the 5 trafficking charge and filed a timely administrative appeal. Dkt. No. ¶¶ 4-8. The USDA denied 6 the appeal and entered a Final Agency Decision (FAD) upholding the disqualification on February 7 18, 2020. Id. ¶ 9. 8 As Section 2023(a)(13) provides, plaintiffs had 30 days from the date of service or delivery 9 of the FAD to file a complaint in the district court for judicial review. 7 U.S.C. § 2023(a)(13). 10 Plaintiffs forthrightly acknowledge that they missed the deadline and filed the complaint in this 11 Court more than 30 days after receiving the FAD. Dkt. No. 1 ¶ 10. The government says, without 12 opposition, that plaintiffs were 36 days late. Dkt. No. 18 at 5. Plaintiffs ask that the late filing be 13 excused in light of the “extraordinary circumstances” caused by the COVID-19 pandemic and 14 “stay-at-home orders,” which impeded their ability to find and retain an attorney to prepare the 15 lawsuit. Dkt. No. 1 ¶ 10; see also Dkt. No. 7-2 ¶¶ 7-14 (Joseph Decl.). 16 The government contends that the case must be dismissed under Rule 12(b)(1) because 17 Section 2023(a)(13) waived the sovereign immunity of the United States for only 30 days, after 18 which the jurisdictional window slammed shut forevermore. Dkt. No. 18 at 4-5; see also Dep’t of 19 Treas.-I.R.S. v. Fed. Lab. Relations Auth., 521 F.3d 1148, 1152 (9th Cir. 2008) (sovereign 20 immunity goes to jurisdiction). Plaintiffs argue that the statutory deadline is not jurisdictional and 21 may be tolled or extended by the Court. Dkt. No. 27 at 5-7; see also Dkt. No. 7 (motion for 22 equitable tolling). The Court has detailed in other orders the standards governing a Rule 12(b)(1) 23 motion to dismiss for lack of subject matter jurisdiction. See, e.g., Friends of Del Norte v. 24 California Dep’t of Transportation, No. 3:18-CV-00129-JD, 2020 WL 1812175, at *1 (N.D. Cal. 25 Apr. 9, 2020). The Court applies those standards here, and the parties’ familiarity with them is 26 assumed. 27 Plaintiffs’ point is well taken. The 30-day deadline in Section 2023(a)(13) does not 1 cases treated the deadline as a jurisdictional limitation on the waiver of sovereign immunity. See, 2 e.g., Shoulders v. U.S. Dep’t of Agric., Food & Nutrition Serv., 878 F.2d 141, 143 (4th Cir. 1989); 3 Omari v. United States, No. C-12-1592 MEJ, 2012 WL 3939362, at *4 (N.D. Cal. Sept. 10, 2012). 4 But the Supreme Court has since re-affirmed the “‘general rule’ that equitable tolling is available 5 in suits against the Government.” United States v. Kwai Fun Wong, 575 U.S. 402, 412 (2015) 6 (quoting Irwin v. Dep’t of Veteran Affairs, 498 U.S. 89, 95 (1990)). Congress is perfectly free to 7 depart from that rule and make a filing deadline jurisdictional, but must affirmatively 8 communicate that intention. Id. at 409-10. Otherwise, a statutory time bar is presumed to be non- 9 jurisdictional, and filing deadlines are simply “‘quintessential claim-processing rules’ which ‘seek 10 to promote the orderly progress of litigation,’ but do not deprive a court of authority to hear a 11 case.” Id. at 410 (quoting Henderson v. Shinseki, 562 U.S. 428, 435 (2011)); see also Sebelius v. 12 Auburn Reg’l Med. Ctr., 568 U.S. 145, 153-54 (2013) (noting Court has “repeatedly held that 13 filing deadlines ordinarily are not jurisdictional,” and that a rule is not jurisdictional absent a 14 “clear statement” from Congress) (internal citations omitted). It “makes no difference that a time 15 bar conditions a waiver of sovereign immunity.” Wong, 575 U.S. at 420. 16 As these cases indicate, the government has to “clear a high bar” to show that Congress 17 intended the 30-day deadline in Section 2023(a)(13) to be a jurisdictional limitations period. Id. at 18 410. It has not succeeded. Nothing in the plain language of the statute manifests a jurisdictional 19 intention. To the contrary, Section 2023(a)(13) “‘reads like an ordinary, run-of-the-mill statute of 20 limitations,’ spelling out a litigant’s filing obligations without restricting a court’s authority.” 21 Wong, 575 U.S. at 411 (quoting Holland v. Florida, 560 U.S. 631, 647 (2010)); see also Sebelius, 22 568 U.S. at 154 (statute saying litigants “may obtain a hearing” within 180 days of final 23 administrative determination “hardly reveals a design to preclude any regulatory extension”). Far 24 stronger language has been deemed to be non-jurisdictional, which further underscores that 25 Congress did not speak to jurisdiction simply by setting a filing deadline in Section 2023(a)(13). 26 See, e.g., Wong, 575 U.S. at 405 (filing deadline in Federal Tort Claims Act stating “shall be 27 forever barred” not jurisdictional); Henderson, 562 U.S. 428, 438 (2011) (same re “shall file a 1 to be “the rare statute of limitations that can deprive a court of jurisdiction.” Wong, 575 U.S. at 2 410. 3 The next question is whether Section 2023(a)(13) manifests a “clear intent to preclude 4 tolling,” or “leaves room” for flexibility. Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 714 5 (2019); see also Young v. United States, 535 U.S. 43
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ABDALLA FAIZ JOSEPH, et al., Case No. 20-cv-02955-JD
8 Plaintiffs, ORDER RE MOTION TO DISMISS 9 v. AND EQUITABLE TOLLING
10 UNITED STATES OF AMERICA, Re: Dkt. Nos. 7, 18 Defendant. 11
12 13 A retail food store that “feels aggrieved” by a final agency determination disqualifying it 14 from participation in the Supplemental Nutrition Assistance Program (SNAP) “may obtain judicial 15 review thereof by filing a complaint against the United States . . . within thirty days after the date 16 of delivery or service of the final notice of determination.” 7 U.S.C. § 2023(a)(13). Plaintiffs’ 17 motion for equitable tolling, Dkt. No. 7, and the United States’ motion to dismiss under Federal 18 Rule of Civil Procedure 12(b)(1), Dkt. No. 18, raise the same question of statutory interpretation: 19 may missing the 30-day deadline be excused, and if so, should it be in this case? 20 The Court heard oral argument on the motion to dismiss. Dkt. No. 31. The motion for 21 equitable tolling was deemed suitable for decision without a hearing. Civil L.R. 7-1(b). Because 22 the law, facts, and arguments for these motions overlap substantially, this Order disposes of both. 23 The salient facts are undisputed. As alleged in the complaint, plaintiff Save More Food 24 Market (which plaintiffs call Sav More) is a San Francisco store owned by plaintiff Joseph. Dkt. 25 No. 1 ¶ 1. The United States Department of Agriculture, the agency in charge of administering the 26 SNAP program, permanently disqualified plaintiffs from participating in SNAP in September 27 2019. Dkt. No. 1 ¶ 6. The USDA concluded, on the basis of a “data analysis” of SNAP 1 30-32. Trafficking is defined in pertinent part as “buying, selling, stealing, or otherwise effecting 2 an exchange of SNAP benefits” for cash or consideration other than eligible food purchases. 7 3 C.F.R. § 271.2. 4 Plaintiffs, who had no prior history of problems with SNAP, unsuccessfully contested the 5 trafficking charge and filed a timely administrative appeal. Dkt. No. ¶¶ 4-8. The USDA denied 6 the appeal and entered a Final Agency Decision (FAD) upholding the disqualification on February 7 18, 2020. Id. ¶ 9. 8 As Section 2023(a)(13) provides, plaintiffs had 30 days from the date of service or delivery 9 of the FAD to file a complaint in the district court for judicial review. 7 U.S.C. § 2023(a)(13). 10 Plaintiffs forthrightly acknowledge that they missed the deadline and filed the complaint in this 11 Court more than 30 days after receiving the FAD. Dkt. No. 1 ¶ 10. The government says, without 12 opposition, that plaintiffs were 36 days late. Dkt. No. 18 at 5. Plaintiffs ask that the late filing be 13 excused in light of the “extraordinary circumstances” caused by the COVID-19 pandemic and 14 “stay-at-home orders,” which impeded their ability to find and retain an attorney to prepare the 15 lawsuit. Dkt. No. 1 ¶ 10; see also Dkt. No. 7-2 ¶¶ 7-14 (Joseph Decl.). 16 The government contends that the case must be dismissed under Rule 12(b)(1) because 17 Section 2023(a)(13) waived the sovereign immunity of the United States for only 30 days, after 18 which the jurisdictional window slammed shut forevermore. Dkt. No. 18 at 4-5; see also Dep’t of 19 Treas.-I.R.S. v. Fed. Lab. Relations Auth., 521 F.3d 1148, 1152 (9th Cir. 2008) (sovereign 20 immunity goes to jurisdiction). Plaintiffs argue that the statutory deadline is not jurisdictional and 21 may be tolled or extended by the Court. Dkt. No. 27 at 5-7; see also Dkt. No. 7 (motion for 22 equitable tolling). The Court has detailed in other orders the standards governing a Rule 12(b)(1) 23 motion to dismiss for lack of subject matter jurisdiction. See, e.g., Friends of Del Norte v. 24 California Dep’t of Transportation, No. 3:18-CV-00129-JD, 2020 WL 1812175, at *1 (N.D. Cal. 25 Apr. 9, 2020). The Court applies those standards here, and the parties’ familiarity with them is 26 assumed. 27 Plaintiffs’ point is well taken. The 30-day deadline in Section 2023(a)(13) does not 1 cases treated the deadline as a jurisdictional limitation on the waiver of sovereign immunity. See, 2 e.g., Shoulders v. U.S. Dep’t of Agric., Food & Nutrition Serv., 878 F.2d 141, 143 (4th Cir. 1989); 3 Omari v. United States, No. C-12-1592 MEJ, 2012 WL 3939362, at *4 (N.D. Cal. Sept. 10, 2012). 4 But the Supreme Court has since re-affirmed the “‘general rule’ that equitable tolling is available 5 in suits against the Government.” United States v. Kwai Fun Wong, 575 U.S. 402, 412 (2015) 6 (quoting Irwin v. Dep’t of Veteran Affairs, 498 U.S. 89, 95 (1990)). Congress is perfectly free to 7 depart from that rule and make a filing deadline jurisdictional, but must affirmatively 8 communicate that intention. Id. at 409-10. Otherwise, a statutory time bar is presumed to be non- 9 jurisdictional, and filing deadlines are simply “‘quintessential claim-processing rules’ which ‘seek 10 to promote the orderly progress of litigation,’ but do not deprive a court of authority to hear a 11 case.” Id. at 410 (quoting Henderson v. Shinseki, 562 U.S. 428, 435 (2011)); see also Sebelius v. 12 Auburn Reg’l Med. Ctr., 568 U.S. 145, 153-54 (2013) (noting Court has “repeatedly held that 13 filing deadlines ordinarily are not jurisdictional,” and that a rule is not jurisdictional absent a 14 “clear statement” from Congress) (internal citations omitted). It “makes no difference that a time 15 bar conditions a waiver of sovereign immunity.” Wong, 575 U.S. at 420. 16 As these cases indicate, the government has to “clear a high bar” to show that Congress 17 intended the 30-day deadline in Section 2023(a)(13) to be a jurisdictional limitations period. Id. at 18 410. It has not succeeded. Nothing in the plain language of the statute manifests a jurisdictional 19 intention. To the contrary, Section 2023(a)(13) “‘reads like an ordinary, run-of-the-mill statute of 20 limitations,’ spelling out a litigant’s filing obligations without restricting a court’s authority.” 21 Wong, 575 U.S. at 411 (quoting Holland v. Florida, 560 U.S. 631, 647 (2010)); see also Sebelius, 22 568 U.S. at 154 (statute saying litigants “may obtain a hearing” within 180 days of final 23 administrative determination “hardly reveals a design to preclude any regulatory extension”). Far 24 stronger language has been deemed to be non-jurisdictional, which further underscores that 25 Congress did not speak to jurisdiction simply by setting a filing deadline in Section 2023(a)(13). 26 See, e.g., Wong, 575 U.S. at 405 (filing deadline in Federal Tort Claims Act stating “shall be 27 forever barred” not jurisdictional); Henderson, 562 U.S. 428, 438 (2011) (same re “shall file a 1 to be “the rare statute of limitations that can deprive a court of jurisdiction.” Wong, 575 U.S. at 2 410. 3 The next question is whether Section 2023(a)(13) manifests a “clear intent to preclude 4 tolling,” or “leaves room” for flexibility. Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 714 5 (2019); see also Young v. United States, 535 U.S. 43, 49 (2002) (statutory deadline is subject to 6 equitable tolling unless inconsistent with text). Non-jurisdictional limitations periods are 7 “normally subject to a ‘rebuttable presumption’ in favor ‘of equitable tolling,’” Holland v. Fla., 8 560 U.S. 631, 645-46 (2010) (emphasis in original) (quoting Irwin v. Dep’t of Veterans Affairs, 9 498 U.S. 89, 95-96 (1990)), and the “simple fact that a deadline is phrased in an unqualified 10 manner does not necessarily establish that tolling is unavailable,” Nutraceutical, 139 S. Ct. at 715. 11 Nothing in Section 2023(a) precludes tolling. The plain language certainly does not say 12 that. See Holland, 560 U.S. at 647 (lack of “unusually emphatic” language suggests equitable 13 tolling is available). In addition, the 30-day period for seeking judicial review is “not particularly 14 long,” and is not part of a detailed scheme providing different deadlines for bringing different 15 kinds of claims, which are among other factors the Supreme Court has considered in determining 16 whether a statutory deadline may be equitably tolled. Id. at 646-47. 17 The absence of clear language barring tolling distinguishes this case from Nutraceutical, 18 which the government relies on. Nutraceutical held that the deadline to seek an appeal of a class 19 certification order under Federal Rule of Civil Procedure 23(f) cannot be equitably tolled because 20 the procedural rule allowing extensions for other deadlines expressly states that a court “may not 21 extend” Rule 23(f)’s deadline. 139 S. Ct. at 715 (quoting Fed. R. App. P. 26(b)). No similar text 22 is present here. Congress did not “single out” Section 2023(a)(13)’s thirty-day deadline for 23 “inflexible treatment,” or show a “clear intent to compel rigorous enforcement.” Id. at 715. 24 The final question is whether plaintiffs’ late filing should be excused. To be entitled to 25 equitable tolling, plaintiffs must show (1) that some extraordinary circumstance outside of their 26 control prevented timely filing, and (2) that they were reasonably diligent in pursuing their rights. 27 Holland, 560 U.S. at 649 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Although the 1 Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (internal citation and quotations omitted), 2 || the Supreme Court has concluded that only “reasonable diligence” is required, not “maximum 3 feasible diligence,” Holland, 560 U.S. at 653 (internal citations and quotations omitted); see also 4 Wong, 575 U.S. at 407-08. 5 Plaintiffs are entitled to tolling. It should go without saying that the current public health 6 || crisis and resulting restrictions on civil and personal life are extraordinary circumstances by any 7 || measure. That was all the more true in the early part of 2020 when the pandemic initially struck, 8 || and when plaintiffs’ time to file a lawsuit was running. The record indicates, without meaningful 9 dispute by the government, that plaintiff Joseph exercised reasonable diligence in looking to hire a 10 || lawyer, and the delay in filing the complaint was of minimal duration. See Dkt. No. 7-2 7-12. 11 These circumstances warrant tolling of the Section 2023(a)(13) deadline. 12 CONCLUSION 5 13 The motion to dismiss for lack of subject matter jurisdiction, Dkt. No. 18, is denied. 14 || Plaintiffs’ motion for equitable tolling and to excuse the late filing of the complaint, Dkt. No. 7, is 3 15 granted. The Court will enter a scheduling order. a 16 IT IS SO ORDERED. 3 17 Dated: December 7, 2020 18 19 JAMES /PONATO 20 United States District Judge 21 22 23 24 25 26 27 28