FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBIN HALL; STEVEN SUMMERS, No. 20-16232
Individually and on behalf of all
others similarly situated, D.C. No.
Plaintiffs-Appellants, 4:20-cv-03454-
HSG
v.
UNITED STATES DEPARTMENT OF OPINION
AGRICULTURE; GEORGE PERDUE, In
his official capacity as United States
Secretary of Agriculture,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Argued and Submitted October 20, 2020
San Francisco, California
Filed December 31, 2020
Before: Sidney R. Thomas, Chief Judge, and Paul J. Kelly,
Jr. * and Eric D. Miller, Circuit Judges.
*
The Honorable Paul J. Kelly, Jr., United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
2 HALL V. USDA
Opinion by Judge Miller;
Dissent by Chief Judge Thomas
SUMMARY **
Supplemental Nutrition Assistance Program
The panel affirmed the district court’s order denying a
motion for a preliminary injunction brought by a putative
class of Californians, who normally receive the maximum
monthly allotment of Supplemental Nutrition Assistance
Program (“SNAP”) benefits, seeking to bar the U.S.
Department of Agriculture (“USDA”) from denying
California’s request under section 2302(a)(1) of the Families
First Coronavirus Response Act to issue emergency
allotments to households already receiving maximum SNAP
benefits.
In response to the COVID-19 pandemic, Congress
enacted the Families First Act, which provided for
supplemental SNAP benefits. The USDA, which
administers SNAP, concluded that the statute allowed
households receiving less than the maximum monthly
allotment of SNAP benefits to be brought up to the
maximum but did not permit those already receiving the
maximum to be given any additional benefits. USDA
rejected, as contrary to its guideline, California’s request that
all SNAP households in the State receive an extra $60 per
person, per month.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
HALL V. USDA 3
The panel held that plaintiffs had Article III standing.
The panel held that plaintiffs satisfied the redressability
requirement by submitting a declaration from a California
official stating that if the court entered a favorable
injunction, California would renew its request for emergency
benefits for households receiving the maximum regular
monthly benefit.
The panel rejected plaintiffs’ contention that the plain
language of section 2302(a)(1) foreclosed USDA’s position
that SNAP households that already receive the maximum
monthly allotment were not eligible for emergency
allotments. The panel held that USDA’s interpretation of
section 2302(a)(1) was not subject to deferential review
under Chevron. The panel further held that the agency had
the better reading of the statute without regard to any
principles of deference, and the panel need not consider
whether the deference prescribed in Skidmore v. Swift & Co.,
323 U.S. 134 (1944), applied here. The panel proceeded to
construe the statute de novo.
Examining the Families First Act as a whole, as well as
other statutes addressing emergency SNAP benefits, the
panel held that three considerations led it to conclude that
the government’s reading of section 2302(a)(1) was more
consistent with the overall statutory scheme. First, the
government’s reading found support in section 2302(a)(2),
the provision immediately following the one at issue.
Second, topping off SNAP benefits at the maximum monthly
allotment for all participants was consistent with the statute
governing USDA’s response to other crises. Third, if
Congress wished to provide across-the-board relief to
households based on increased food costs, it would have
most naturally modified the metric designed to measure
4 HALL V. USDA
those costs – the thrifty food plan. See 7 U.S.C. §§ 2012(u),
2017(a).
The panel concluded that because plaintiffs were
unlikely to succeed on the merits of their claims, the district
court did not abuse its discretion in denying a preliminary
injunction.
Chief Judge Thomas dissented because he would hold
that plaintiffs established a clear likelihood of success on
their claims that the agency’s interpretation of section
2302(a)(1) of the Families First Act could not stand under 5
U.S.C. § 706(2). The plain language of section 2302(a)(1)
compelled the conclusion that Congress did not intend to
limit the emergency assistance available under that provision
to the maximum amount that SNAP households may receive
under non-emergency conditions. Chief Judge Thomas
would reverse the denial of the preliminary injunction and
remand to the district court for consideration of the
remaining factors under Winter v. NRDC, Inc., 555 U.S. 7,
20 (2008).
COUNSEL
Alexander Prieto (argued), Richard Rothschild, and
Antionette D. Dozier, Western Center on Law & Poverty,
Los Angeles, California; Lindsay Nako, Jocelyn D. Larkin,
and David S. Nahmias, Impact Fund, Berkeley, California;
for Plaintiffs-Appellants.
Joshua K. Handell (argued) and Michael S. Raab, Appellate
Staff; Ethan P. Davis, Acting Assistant Attorney General;
Civil Division, United States Department of Justice,
Washington, D.C.; Ryan M. Majerus, Senior Counsel;
HALL V. USDA 5
Stephen A. Vaden, General Counsel; Office of the General
Counsel, United States Department of Agriculture,
Washington, D.C.; for Defendants-Appellees.
OPINION
MILLER, Circuit Judge:
As part of its response to the COVID-19 pandemic,
Congress enacted the Families First Coronavirus Response
Act (Families First Act), Pub. L. No. 116-127, 134 Stat. 178
(2020), which provides for emergency assistance to
households participating in the Supplemental Nutrition
Assistance Program (SNAP). Section 2302(a)(1) of the
Families First Act authorizes “emergency allotments to
households participating in [SNAP] . . . to address
temporary food needs not greater than the applicable
maximum monthly allotment for the household size.” Id.
§ 2302(a)(1), 134 Stat. at 188. The United States Department
of Agriculture (USDA), which administers SNAP,
concluded that the statute allows households receiving less
than the maximum monthly allotment of SNAP benefits to
be brought up to the maximum but does not permit those
already receiving the maximum to be given any additional
benefits. We are asked to decide whether USDA has
correctly interpreted the statute. We conclude that it has.
I
Congress created SNAP—formerly known as the food
stamp program—to
“alleviate . . . hunger and malnutrition” by
“increasing [the] food purchasing power” of
low-income households. 7 U.S.C. § 2011; see
6 HALL V. USDA
Food, Conservation, and Energy Act of 2008,
Pub. L. No. 110-246, § 4001(b), 122 Stat.
1651, 1853–82. SNAP is a federally funded,
state-administered program that distributes
monthly benefits, or “allotments,” to eligible
households. 7 U.S.C. §§ 2013(a), 2020.
Households can use those allotments “to
purchase food from retail food stores.” Id.
§ 2013(a).
A household’s monthly allotment is calculated by
reference to the “thrifty food plan,” which is “the diet
required to feed a family of four,” as determined by the
Secretary of Agriculture. 7 U.S.C. §§ 2012(u), 2017(a). The
value of each household’s allotment is equal to the cost of
the thrifty food plan, adjusted for household size, minus
30 percent of the household’s income. Id. § 2017(a).
Households with no income receive the maximum monthly
allotment, which is equal to the entire cost of the thrifty food
plan, adjusted for household size. Id. §§ 2012(u), 2017(a).
On March 18, 2020, Congress enacted the Families First
Act, which provides for supplemental SNAP benefits in
response to the COVID-19 pandemic. See Families First Act,
§ 2302, 134 Stat. at 188. “In the event of a public health
emergency declaration by the Secretary of Health and
Human Services . . . based on an outbreak of [COVID-19]
and the issuance of an emergency or disaster declaration by
a State based on an outbreak of COVID-19,” section
2302(a)(1) of the Families First Act directs the Secretary of
Agriculture to provide “for emergency allotments to
households participating in [SNAP] under the Food and
Nutrition Act of 2008 to address temporary food needs not
greater than the applicable maximum monthly allotment for
the household size.” Id. § 2302(a)(1), 134 Stat. at 188.
HALL V. USDA 7
Section 2302(a)(2) further permits the Secretary to “adjust,
at the request of State agencies or by guidance in
consultation with one or more State agencies, issuance
methods and application and reporting requirements under
the Food and Nutrition Act of 2008 to be consistent with
what is practicable under actual conditions in affected
areas.” Id. § 2302(a)(2), 134 Stat. at 188.
When Congress enacted the Families First Act, the
Secretary of Health and Human Services had already issued
the emergency declaration required to invoke section
2302(a)(1). See Press Release, United States Department of
Health and Human Services, Secretary Azar Declares Public
Health Emergency for United States for 2019 Novel
Coronavirus (Jan. 31, 2020). Individual States, including
California, had followed suit with their own disaster
declarations. See Press Release, Gavin Newsom, Governor
of California, Governor Newsom Declares State of
Emergency to Help State Prepare for Broader Spread of
COVID-19 (Mar. 4, 2020).
USDA immediately began to implement the Families
First Act. On March 20, the agency issued a sample request
form for States entitled “Request to Provide Emergency
Allotments (Supplements) to SNAP Households.” The form
suggested that a requesting State frame its request so as “to
bring all households up to the maximum benefit due to
pandemic related economic conditions for up to 2 months.”
The form also asked the State to certify that COVID-19 had
affected the medical and economic wellbeing of its residents,
as measured by criteria such as whether “[r]esidents of the
State are confirmed to have contracted Covid-19” and
whether “[b]usinesses have closed or significantly reduced
their hours.”
8 HALL V. USDA
The California Department of Social Services submitted
to USDA a request for emergency allotments. But
California’s request did not seek to top off the SNAP
benefits of participating households at “the maximum
benefit,” as contemplated by USDA’s guidance. Instead, to
ensure that those households already receiving the maximum
benefit would still receive an emergency allotment,
California proposed that all SNAP households in the State
receive an extra $60 per person, per month.
USDA rejected California’s request as contrary to the
guidance in the sample request form. Reserving its
objections, California then revised its request “in
accordance” with USDA’s guidance. USDA approved the
revised request, reiterating the agency’s position that “SNAP
households that already receive the maximum monthly
allotment for their household size are not eligible for
[emergency allotments].”
On April 21, USDA restated that view in an updated
guidance. Later that month, California asked to extend the
distribution of emergency allotments to eligible households
in line with its revised request. USDA approved the request.
Although the State of California continues to disagree
with USDA’s interpretation of the statute, it has not
challenged that interpretation in court. The plaintiffs in this
case, Robin Hall and Steven Summers (collectively, “Hall”),
are Californians who normally receive the maximum
monthly allotment of SNAP benefits and therefore are not
eligible for emergency allotments under USDA’s
interpretation of the Families First Act. Hall brought this
putative class action against USDA and the Secretary of
Agriculture challenging the agency’s interpretation of
section 2302(a)(1) as arbitrary and capricious and in excess
of statutory authority. See 5 U.S.C. § 706(2). Hall also
HALL V. USDA 9
sought a preliminarily injunction barring USDA “from
denying any otherwise appropriate request from California
under section 2302(a)(1) . . . because it provides emergency
[SNAP] allotments to households receiving the maximum
monthly benefit amount.”
The district court denied a preliminary injunction. Hall
v. USDA, 467 F. Supp. 3d 838 (N.D. Cal. 2020). The court
began by explaining that to obtain a preliminary injunction,
a plaintiff must establish that (1) she “is likely to succeed on
the merits,” (2) she “is likely to suffer irreparable harm in
the absence of preliminary relief,” (3) “the balance of
equities tips in [her] favor,” and (4) “an injunction is in the
public interest.” Id. at 844 (quoting Winter v. NRDC, Inc.,
555 U.S. 7, 20 (2008)). Mandatory injunctions requiring a
deviation from the status quo, the court noted, are
“particularly disfavored.” Id. (quoting Garcia v. Google,
Inc., 786 F.3d 733, 740 (9th Cir. 2015)).
Turning to section 2302(a)(1), the district court
“acknowledge[d] that [Hall’s] facial reading of Section 2302
has some persuasive force,” but it determined that the statute
is not “unambiguous on its face.” 467 F. Supp. 3d at 845.
The court noted that USDA had estimated “that providing
emergency allotments to raise all SNAP households to the
maximum monthly allotment will cost an additional
$2 billion per month,” and that Congress had appropriated
six months’ worth of such funding shortly after it enacted the
Families First Act. Id. at 846; see Coronavirus Aid, Relief,
and Economic Security Act, Pub. L. No. 116-136, § 6002,
134 Stat. 281, 508 (Mar. 27, 2020). Hall’s interpretation, by
contrast, “would cost an additional $6.7 to $7 billion per
month, and would quickly outpace SNAP’s appropriated
funds.” 467 F. Supp. 3d at 847. The court also observed that
“Congress has not suggested that the USDA’s guidance or
10 HALL V. USDA
its implementation of the [Families First Act] is inconsistent
with its intention,” and that, “[t]o the contrary, some
members of Congress have publicly lamented that the
[Families First Act] did not go far enough in assisting SNAP
participants, and advocated for increasing the maximum
monthly allotment.” Id. (footnote omitted). The court
concluded that because section 2302(a)(1) is ambiguous, and
USDA’s interpretation is reasonable, Hall did not show “a
‘clear likelihood of success on the merits,’ as [a plaintiff]
must to obtain a mandatory injunction.” Id. at 848 (quoting
Stanley v. University of S. Cal., 13 F.3d 1313, 1316 (9th Cir.
1994)).
Finally, although the district court declined to reach the
remaining preliminary-injunction factors, it noted
“considerable reservations” about Hall’s “ability to establish
redressability” because even after a favorable ruling,
“California, an independent sovereign, must renew its
request for emergency allotments” before applicants can
receive them. 467 F. Supp. 3d at 848.
After the district court denied a preliminary injunction,
Hall asked this court for an emergency injunction pending
appeal. A motions panel denied an injunction but ordered
that the appeal be expedited.
II
Before we turn to the merits of the appeal, we consider
whether we have jurisdiction. Article III defines the
jurisdiction of the federal courts in terms of “cases” and
“controversies,” and the requirement that a plaintiff have
standing “is an essential and unchanging part of the case-or-
controversy requirement.” Lujan v. Defenders of Wildlife,
504 U.S. 555, 559–60 (1992); see U.S. Const. art. III, § 2.
To satisfy “the irreducible constitutional minimum of
HALL V. USDA 11
standing,” a plaintiff must establish three elements: (1) that
the plaintiff has “suffered an injury in fact—an invasion of a
legally protected interest which is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical,” (2) that there is “a causal connection between
the injury and the conduct complained of,” and (3) that it is
“likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision.” Lujan, 504 U.S.
at 560–61 (internal quotation marks and citations omitted).
In this case, Hall’s injury comes from not receiving
emergency allotments, but Hall cannot receive allotments
unless the State of California, which is not a party to this
litigation, first requests them. And because the statute gives
States discretion in framing their requests, any future request
from California would not necessarily cover Hall. Indeed,
although California initially proposed that emergency
allotments be distributed to all SNAP households, including
those already receiving the maximum monthly allotment, it
then revised its request to comport with USDA’s guidance.
So even if Hall secured a ruling that she is eligible to receive
emergency allotments under section 2302(a)(1), California
would have to submit a new request along the lines of its
initial request before Hall could obtain any concrete relief.
Although the government raises this issue, it does not
expressly argue that Hall lacks standing. Nevertheless, even
when “the parties have not raised the issue of . . . standing,
we recognize a duty to examine this issue sua sponte”
because it affects our subject-matter jurisdiction. Safari Club
Int’l v. Rudolph, 862 F.3d 1113, 1117 n.1 (9th Cir. 2017).
The requirement of standing means that a federal court
may “act only to redress injury that fairly can be traced to
the challenged action of the defendant, and not injury that
results from the independent action of some third party not
12 HALL V. USDA
before the court.” Simon v. Eastern Ky. Welfare Rights Org.,
426 U.S. 26, 41–42 (1976). As we have explained, however,
“[r]edressability does not require certainty, but only a
substantial likelihood that the injury will be redressed by a
favorable judicial decision.” Northwest Requirements Utils.
v. FERC, 798 F.3d 796, 806 (9th Cir. 2015) (quoting
Washington Env’t Council v. Bellon, 732 F.3d 1131, 1146
(9th Cir. 2013)); accord Renee v. Duncan, 686 F.3d 1002,
1013 (9th Cir. 2012). That requirement does not
categorically “exclude injury produced by determinative or
coercive effect upon the action of someone else.” Bennett v.
Spear, 520 U.S. 154, 169 (1997). Thus, even if an
independent actor retains discretion to deny relief to the
plaintiff following a favorable ruling, the plaintiff can
“adduce facts showing that those choices have been or will
be made in such manner as to . . . permit redressability of
injury.” Lujan, 504 U.S. at 562.
We conclude that Hall has satisfied that requirement. To
address the redressability concerns identified by the district
court, Hall attached to her motion for an injunction pending
appeal a declaration from Alexis Carmen Fernández, Chief
of the CalFresh and Nutrition Services Branch of the
California Department of Social Services. The declaration
states that if the court were to enter an injunction requiring
USDA to authorize emergency allotments for SNAP
households receiving the maximum monthly allotment,
California “would promptly revise and renew its request for
emergency allotments for future benefit months,” and its
new request “would include emergency benefits for
households receiving the maximum regular monthly benefit
amount.” That is sufficient to demonstrate a “significant
increase in the likelihood that the plaintiff would obtain
relief that directly redresses the injury suffered.” Renee,
686 F.3d at 1013 (quoting Utah v. Evans, 536 U.S. 452, 464
HALL V. USDA 13
(2002)); see also Interpipe Contracting, Inc. v. Becerra,
898 F.3d 879, 891 n.9 (9th Cir. 2018) (plaintiff had standing
to challenge prohibition on third parties’ contributions to
plaintiff based on declarations demonstrating third parties’
“concrete intentions to resume contributions” upon a
favorable ruling).
To be sure, the declaration does not establish exactly
what kind of request the State would submit in response to a
favorable decision. In particular, it does not say that
California would submit a request identical to the State’s
initial request, nor does it say that whatever request it did
submit would necessarily cover Hall. The government
argues that the requested injunction would “order USDA to
approve a hypothetical application that may or may not be
anticipated by a non-party State agency that has not
committed to including Plaintiffs within the scope of its
emergency-allotment request and has offered no information
about how much, if any at all, Plaintiffs stand to gain from
such a request.” Even though Hall has established a
“significant increase in the likelihood” of relief sufficient to
establish standing, the uncertainty about what the State will
do remains relevant to the question of irreparable harm in the
preliminary-injunction analysis. Renee, 686 F.3d at 1013
(quoting Evans, 536 U.S. at 464). We need not explore that
issue further, however, because we conclude that Hall has
not shown a likelihood of success on the merits.
III
As the district court correctly recognized, the decision
whether to grant a preliminary injunction is governed by the
four factors the Supreme Court articulated in Winter. See
555 U.S. at 20. Here, we conclude that likelihood of success
on the merits is determinative, so we confine our analysis to
that factor. “We review the denial of a preliminary injunction
14 HALL V. USDA
for abuse of discretion and the underlying legal principles de
novo.” Fyock v. Sunnyvale, 779 F.3d 991, 995 (9th Cir.
2015).
Hall contends that she is likely to succeed on the merits
because the plain language of section 2302(a)(1) forecloses
USDA’s position that SNAP households that already receive
the maximum monthly allotment are not eligible for
emergency allotments. We disagree.
A
We begin by considering what, if any, deference we owe
to USDA’s interpretation of section 2302(a)(1). Often, when
construing a statute that is administered by a federal agency,
we review the agency’s interpretation under the framework
prescribed in Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S.
837 (1984). Here, the parties dispute whether USDA’s
interpretation is subject to review under Chevron. We
conclude that it is not.
Although the Court in Chevron described a mode of
analysis to be applied “[w]hen a court reviews an agency’s
construction of the statute which it administers,” 467 U.S. at
842, later Supreme Court decisions have clarified that the
Chevron analysis does not apply to all agency
interpretations, see, e.g., United States v. Mead Corp.,
533 U.S. 218, 231–34 (2001). Instead, “administrative
implementation of a particular statutory provision qualifies
for Chevron deference when it appears that Congress
delegated authority to the agency generally to make rules
carrying the force of law, and that the agency interpretation
claiming deference was promulgated in the exercise of that
authority.” Id. at 226–27; see also Encino Motorcars, LLC
v. Navarro, 136 S. Ct. 2117, 2124–25 (2016); Pacific Choice
Seafood Co. v. Ross, 976 F.3d 932, 940 (9th Cir. 2020). By
HALL V. USDA 15
contrast, informal “interpretations contained in policy
statements, agency manuals, and enforcement guidelines”
are “beyond the Chevron pale.” Mead, 533 U.S. at 234
(quoting Christensen v. Harris County, 529 U.S. 576, 587
(2000)).
USDA’s interpretation of section 2302(a)(1), as reflected
in the March 20 sample request form and April 21 update,
was not promulgated through notice-and-comment
rulemaking or formal adjudication, and it expressly purports
not to carry the force of law. See Mead, 533 U.S. at 230. Both
guidance documents include the following disclaimer: “The
contents of this document do not have the force and effect of
law and are not meant to bind the public in any way. This
document is intended only to provide clarity to the public
regarding existing requirements under the law or agency
policies.” Under Mead, such documents are not entitled to
Chevron deference. See Alaska Dep’t of Env’t Conservation
v. EPA, 540 U.S. 461, 487 (2004); Northern Cal. River
Watch v. Wilcox, 633 F.3d 766, 779 (9th Cir. 2011).
The government contends that the agency’s
interpretation was not expressed only in the guidance; it also
was applied in an informal adjudication—specifically,
USDA’s denial of California’s first request for emergency
allotments. In some circumstances, an interpretation
developed in an informal adjudication may be entitled to
Chevron deference. See Kaufman v. Nielsen, 896 F.3d 475,
484 (D.C. Cir. 2018). But USDA’s interpretation “did not
originally arise through an . . . adjudication”; instead, the
agency “expressed its position in guidance documents,”
upon which it later relied in denying California’s request.
Orton Motor, Inc. v. U.S. Dep’t of Health & Human Servs.,
884 F.3d 1205, 1211 (D.C. Cir. 2018). Indeed, USDA’s
rejection of California’s first request merely referenced the
16 HALL V. USDA
guidance contained in the sample request form, without any
further elaboration.
In any event, even if we agreed that USDA developed its
interpretation through informal adjudication, Chevron
would apply only to the extent we determined that the
interpretation was “intended to have general applicability
and the force of law.” Kaufman, 896 F.3d at 484 (quoting
Fox v. Clinton, 684 F.3d 67, 78 (D.C. Cir. 2012)). In making
that determination, we would apply the factors set out in
Barnhart v. Walton, 535 U.S. 212 (2002), which “are ‘the
interstitial nature of the legal question, the related expertise
of the Agency, the importance of the question to
administration of the statute, the complexity of that
administration, and the careful consideration the Agency has
given the question over a long period of time.’” Kaufman,
896 F.3d at 484 (quoting Barnhart, 535 U.S. at 222).
Those factors do not support applying Chevron here.
USDA’s interpretation involves a significant legal question,
not an “interstitial” one, and there is no indication that
USDA gave “careful consideration” to “the question over a
long period of time.” Barnhart, 535 U.S. at 222. USDA’s
first guidance document—the sample request form—was
issued just two days after Congress enacted the Families
First Act, with updated guidance following one month later.
The contents of the guidance documents also do not evince
“careful consideration.” The sample request form contains
no reasoning explaining why households already receiving
the maximum monthly allotment are not eligible for
emergency allotments, and the subsequent update merely
quotes the statute and reaches the same conclusion without
explanation. For these reasons, USDA’s guidance does not
satisfy the Barnhart factors, and we conclude that it is not
subject to deferential review under Chevron.
HALL V. USDA 17
The government suggests that USDA’s interpretation is
at least entitled to the narrower form of deference prescribed
in Skidmore v. Swift & Co., 323 U.S. 134 (1944). Deference
to an agency’s interpretation under Skidmore is limited to the
interpretation’s “power to persuade.” Id. at 140; see
Christensen, 529 U.S. at 587. Because we conclude that the
agency has the better reading of the statute without regard to
any principles of deference, we need not consider whether
Skidmore applies here, and we proceed to construe the
statute de novo. See Turtle Island Restoration Network v.
U.S. Dep’t of Com., 878 F.3d 725, 733 (9th Cir. 2017).
B
We begin with the statutory text. See United States v.
Herrera, 974 F.3d 1040, 1047 (9th Cir. 2020). Section
2302(a)(1) states in relevant part:
[T]he Secretary of Agriculture . . . shall
provide, at the request of a State agency (as
defined in section 3 of the Food and Nutrition
Act of 2008) that provides sufficient data (as
determined by the Secretary through
guidance) supporting such request, for
emergency allotments to households
participating in the supplemental nutrition
assistance program under the Food and
Nutrition Act of 2008 to address temporary
food needs not greater than the applicable
maximum monthly allotment for the
household size.
Families First Act, § 2302(a)(1), 134 Stat. at 188.
Hall argues that the phrase “not greater than the
applicable maximum monthly allotment for the household
18 HALL V. USDA
size” modifies “emergency allotments.” On that reading, all
SNAP households may receive an emergency allotment up
to the size of the maximum monthly allotment, which means
that SNAP households already receiving the maximum
monthly allotment are eligible to receive benefits totaling up
to twice the maximum. By contrast, the government argues
that the limiting phrase instead modifies “temporary food
needs.” On the government’s reading, the statute leaves
untouched the maximum total benefits a household may
receive, and only households that normally receive less than
the maximum monthly allotment are eligible for emergency
allotments.
It is grammatically possible to read the limiting phrase to
modify either “emergency allotments” or “temporary food
needs.” Hall argues that the statute resolves the ambiguity by
directing that emergency allotments be provided to
“households participating in [SNAP],” which in her view
means all such households. Families First Act, § 2302(a)(1),
134 Stat. at 188; see Gilliam v. USDA, ___ F. Supp. 3d ___,
2020 WL 5501220, at *12 (E.D. Pa. Sept. 11, 2020). But
while section 2302(a)(1) provides that all recipients of
emergency allotments must be “households participating in
[SNAP],” nothing in the statute suggests that the converse is
true—that all participating households must receive
emergency allotments. It is entirely possible to read the
limiting phrase as narrowing the pool of eligible recipients.
Where the language is ambiguous, canons of
construction can “provide guidance . . . by providing a
compendium of well-established inferences” about the
statutory meaning. In re Pangang Grp. Co., 901 F.3d 1046,
1055–56 (9th Cir. 2018). The government invokes the rule
of the last antecedent, under which “a limiting clause or
phrase . . . should ordinarily be read as modifying only the
HALL V. USDA 19
noun or phrase that it immediately follows.” Barnhart v.
Thomas, 540 U.S. 20, 26 (2003). Strictly speaking, the
applicable rule in this case is not the rule of the last
antecedent but the nearest-reasonable-referent canon—
while pronouns have “antecedents,” phrases such as “not
greater than the applicable maximum monthly allotment for
the household size” do not. But the substance of the rule is
the same: “When the syntax involves something other than a
parallel series of nouns or verbs, a prepositive or postpositive
modifier normally applies only to the nearest reasonable
referent.” Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 152 (2012); see Grecian
Magnesite Mining, Indus. & Shipping Co. v. Commissioner,
926 F.3d 819, 824 (D.C. Cir. 2019); Travelers Indem. Co. v.
Mitchell, 925 F.3d 236, 243 (5th Cir. 2019).
Of course, the canon can be “‘overcome by other indicia
of meaning,’” as, for example, in a provision where a
modifier follows a series of “items that readers are used to
seeing listed together,” or where a “concluding modifier” is
one “that readers are accustomed to applying to each of” the
words preceding it. Lockhart v. United States, 136 S. Ct. 958,
963 (2016) (quoting Barnhart, 540 U.S. at 26). But section
2302(a) is not such a provision. To the contrary, in section
2302(a), “it takes more than a little mental energy to
process” the words preceding the limiting phrase, “making
it a heavy lift to carry the modifier across them all.” Id.
Applying the nearest-reasonable-referent canon, we
conclude that the limiting phrase is best read to modify the
immediately preceding phrase, “temporary food needs.”
That reading avoids jumping backward over multiple
prepositional phrases to reach the intended referent, in favor
of a more natural reading.
20 HALL V. USDA
But that conclusion does not end the analysis. Even
assuming that it is “temporary food needs” that must not be
“greater than the applicable monthly allotment for the
household size,” the phrase “temporary food needs” is
susceptible to multiple readings. It could refer to (1) the total
monthly benefits a household requires, temporarily, during
the pandemic, or (2) the temporary increase in monthly
benefits a household requires during the pandemic. Capping
total monthly benefits at the monthly maximum would deny
emergency allotments to households already receiving the
monthly maximum. But capping the increase in monthly
benefits at the monthly maximum would permit those
households to receive up to twice the monthly maximum.
The question remains: Did Congress cap total SNAP benefits
at the maximum monthly allotment, or did it create a
separate, additional benefit also tied to SNAP’s maximum
monthly allotment?
Viewed in isolation, the text of section 2302(a)(1) does
not answer the question. “Statutory construction, however,
is a holistic endeavor,” and “[a] provision that may seem
ambiguous in isolation is often clarified by the remainder of
the statutory scheme.” United Sav. Ass’n of Tex. v. Timbers
of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988);
accord Davis v. Michigan Dep’t of Treasury, 489 U.S. 803,
809 (1989); Friends of Animals v. U.S. Fish & Wildlife Serv.,
879 F.3d 1000, 1006 (9th Cir. 2018). In addition, “[t]he
meaning of one statute may be affected by other Acts.” FDA
v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133
(2000). Thus, “[w]here a statutory term presented to us for
the first time is ambiguous, we construe it to contain that
permissible meaning which fits most logically and
comfortably into the body of both previously and
subsequently enacted law.” West Va. Univ. Hosps., Inc. v.
Casey, 499 U.S. 83, 100 (1991). When we examine the
HALL V. USDA 21
Families First Act as a whole, as well as other statutes
addressing emergency SNAP benefits, three considerations
lead us to conclude that the government’s reading of section
2302(a)(1) is more consistent with the overall statutory
scheme.
First, the government’s reading finds support in section
2302(a)(2), the provision immediately following the one at
issue. Section 2302(a)(2) permits the Secretary of
Agriculture to “adjust, at the request of State agencies or by
guidance in consultation with one or more State agencies,
issuance methods and application and reporting
requirements under the Food and Nutrition Act of 2008 to be
consistent with what is practicable under actual conditions
in affected areas.” Families First Act, § 2302(a)(2), 134 Stat.
at 188. In making that adjustment, the Secretary must
“consider the availability of offices and personnel in State
agencies, any conditions that make reliance on electronic
benefit transfer systems . . . impracticable, [and] any
disruptions of transportation and communication facilities.”
Id. That new flexibility makes sense as a way of addressing
the concern that USDA might not have access to key
information affecting households’ eligibility for SNAP
benefits, including changes in income. Congress relaxed
“application and reporting requirements” so that USDA
could quickly top-off benefits to offset sudden disruptions in
income. Id.; compare 7 C.F.R. § 273.2(f) (requiring State
verification of income and other eligibility requirements).
On the government’s reading, paragraphs (a)(1) and (a)(2)
work together to address the economic disruptions caused by
the pandemic, which might lead households to lose income
but not have immediate access to documentation of their
reduced income. That reading “produce[s] an understanding
of the statute as a symmetrical and coherent regulatory
scheme.” Hernandez v. Williams, Zinman & Parham PC,
22 HALL V. USDA
829 F.3d 1068, 1073 (9th Cir. 2016) (internal quotation
marks omitted).
We acknowledge that under the government’s reading,
households that have not suffered income loss might receive
a windfall of emergency aid. But that is also true under
Hall’s reading. Indeed, Hall emphasizes that her
interpretation, unlike the government’s, would allow
households that had no income before the pandemic—and
thus have suffered no income loss—to receive emergency
allotments. Either way, Congress could reasonably have
deemed that collateral cost justified so as to avoid having to
reassess the incomes of all SNAP families during the
pandemic. That result is hardly so “absurd and unjust” that
“Congress could not have intended” it. United States v.
Middleton, 231 F.3d 1207, 1210 (9th Cir. 2000) (quoting
Clinton v. City of New York, 524 U.S. 417, 429 (1998)).
By contrast, nothing in either paragraph (a)(1) or
paragraph (a)(2) suggests a concern that the pandemic would
increase the cost of the thrifty food plan, thereby requiring
an increase in benefits above the maximum monthly
allotment. Nor does any provision of the statute provide
guidance comparable to that in section 2302(a)(2) on how
the Secretary would assess increased food costs or decide by
how much to increase benefits above the maximum.
Hall suggests that section 2302(c) shows that Congress
was concerned about disruptions to the food supply and not
simply the loss of income, but that provision does not
support her interpretation. Section 2302(c) requires the
Secretary to submit a report to Congress after the pandemic
is over describing “the measures taken to address the food
security needs of affected populations during the emergency,
any information or data supporting State agency requests,
any additional measures that States requested that were not
HALL V. USDA 23
approved, and recommendations” for the future. Families
First Act, § 2302(c), 134 Stat. at 188–89. The subject matter
of that report—including “additional measures that States
requested”—necessarily extends beyond the distribution of
the emergency allotments discussed in section 2302(a)(1).
And while it is true that the concept of “food security needs”
encompasses a broad range of issues, that does not mean that
“temporary food needs,” as used in section 2302(a)(1), must
be read to account for pandemic-related disruptions to the
food supply.
Second, topping-off SNAP benefits at the maximum
monthly allotment for all participants is consistent with the
statute governing USDA’s response to other crises. To meet
“temporary food needs” arising from natural disasters,
Congress has authorized the Secretary to “establish
temporary emergency standards of eligibility . . . for
households who are victims of a disaster which disrupts
commercial channels of food distribution.” 7 U.S.C.
§ 2014(h)(1). Under that authority, USDA has created the
Disaster Supplemental Nutrition Assistance Program (D-
SNAP), which “provides a full month’s allotment”—“the
maximum allotment for the household size provided under
regular SNAP”—“to households who may not normally
qualify for or participate in SNAP.” USDA, Disaster SNAP
Guidance 8 (July 2014). USDA also “supplement[s] the
regular SNAP benefits of ongoing households affected by
the disaster to bring them up to the maximum allotment.” Id.
That supplemental assistance offsets “the impact of
additional disaster-related expenses” likely to “weigh
heavily” on SNAP households and ensures “parity between
new D-SNAP households and ongoing clients.” Id. at 35. It
helps to offset “[l]ost or inaccessible income,”
“[i]naccessible liquid resources,” and “[o]ut-of-pocket
disaster-related expenses paid . . . by the household” (such
24 HALL V. USDA
as “damage to or destruction of the household’s home or
self-employment business”). Id. at 12. But it does not
provide supplemental assistance to SNAP households
already receiving the maximum monthly allotment. Id. at 8.
Congress is presumed to be aware of an agency’s
interpretation of a statute. See Forest Grove Sch. Dist. v.
T.A., 557 U.S. 230, 239–40 (2009). We most commonly
apply that presumption when an agency’s interpretation of a
statute “has been officially published and consistently
followed.” Autolog Corp. v. Regan, 731 F.2d 25, 32 (D.C.
Cir. 1984). If Congress thereafter reenacts the same
language, we conclude that it has adopted the agency’s
interpretation. Id.; see also Merrill Lynch, Pierce, Fenner &
Smith, Inc. v. Curran, 456 U.S. 353, 382 n.66 (1982). Here,
the agency’s interpretation of D-SNAP was not reflected in
published regulations, which weakens the inference that
Congress had USDA’s disaster guidance in mind when it
imported the term “temporary food needs” into the Families
First Act. See Rabin v. Wilson-Coker, 362 F.3d 190, 197 (2d
Cir. 2004) (questioning whether “we should assume
Congress’s awareness of an administrative interpretation
that does not result from notice and comment rulemaking”);
United States v. Ray, 375 F.3d 980, 991 n.14 (9th Cir. 2004).
Still, we find the history suggestive. Until the Families First
Act, the provision authorizing D-SNAP was the only place
in Title 7 where the term “temporary food needs” appeared.
7 U.S.C. § 2014(h)(1). In construing a statute that applies to
a “public health emergency,” Families First Act,
§ 2302(a)(2), 134 Stat. at 188, it is natural to give the term
“temporary food needs” the same meaning that the agency
has consistently given it in the context of other kinds of
“temporary emergenc[ies],” 7 U.S.C. § 2014(h)(1).
HALL V. USDA 25
Third, if Congress wished to provide across-the-board
relief to households based on increased food costs, it would
most naturally have modified the metric designed to measure
those costs—the thrifty food plan. See 7 U.S.C. §§ 2012(u),
2017(a). The statute already provides for periodic
readjustment of the cost of the thrifty food plan. Id.
§ 2012(u). And in another recent national emergency,
Congress directly adjusted the thrifty food plan. In response
to the 2008 financial crisis, Congress expressly modified the
maximum monthly allotment, directing USDA to calculate
that figure “using 113.6 percent of the . . . value of the thrifty
food plan.” American Recovery and Reinvestment Act of
2009 (Recovery Act), Pub. L. No. 111-5, § 101(1), 123 Stat.
115, 120. That modification resulted in precisely the result
advocated by Hall in this case: increased SNAP benefits for
all households, including those already receiving the
maximum monthly allotment. We have held that “Congress
does not use different language in different provisions to
accomplish the same result,” and while that presumption is
strongest when the two provisions are enacted at the same
time, it is nonetheless relevant that Congress had before it a
recent example of language that would have accomplished
the result Hall claims that it intended, yet it chose not to use
that language. United States v. Fiorillo, 186 F.3d 1136, 1148
(9th Cir. 1999) (per curiam).
Hall questions the comparison to the Recovery Act
because that statute, she says, involved “a uniform
nationwide increase in SNAP benefits” in response to a
recession, whereas the Families First Act was enacted as
“COVID-19’s impacts were just beginning, and their
severity varied greatly” throughout the country. So, Hall
argues, rather than modify the thrifty food plan, Congress
adopted an approach that would account for variation in food
costs and availability among States. We see no basis for that
26 HALL V. USDA
assumption. The Families First Act nowhere directs the
Secretary to calculate emergency allotments based on a
State-by-State analysis of fluctuating food costs and
availability. Nor does the act specify a mechanism by which
the Secretary would develop such regionally varying food
plans. The more natural understanding of the difference
between the two statutes is that one increased the maximum
monthly benefit and the other did not.
Significantly, when Congress increased the maximum
monthly benefit in the Recovery Act, it clearly identified the
relevant provision under the section heading “Temporary
Increase in Benefits Under the Supplemental Nutrition
Assistance Program,” and subheading “Maximum Benefit
Increase.” Recovery Act, § 101(1), 123 Stat. at 120. By
contrast, Congress enacted section 2302 of the Families First
Act under the nondescript heading “Additional SNAP
Flexibilities in a Public Health Emergency,” Families First
Act, § 2302, 134 Stat. at 188, in a title designated “SNAP
Waivers,” id. div. B, tit. III, 134 Stat. at 187. On Hall’s
interpretation, the Families First Act yielded a much greater
increase in the maximum monthly allotment—doubling it,
rather than simply increasing it by 13.6 percent, and not only
for the poorest households, but potentially for every
household receiving SNAP benefits. We think it implausible
that Congress would so fundamentally alter the scheme
using such vague and inconspicuous terms. Cf. Whitman v.
American Trucking Ass’ns, 531 U.S. 457, 909–10 (2001)
(“Congress . . . does not alter the fundamental details of a
regulatory scheme in vague terms or ancillary provisions.”).
Finally, Hall urges us to reject USDA’s interpretation of
the statute because it would result in the denial of emergency
allotments to some of the neediest households—namely,
“those who already receive the maximum regular monthly
HALL V. USDA 27
SNAP allotment because they have no income available to
dedicate to purchasing food.” That is a serious concern, but
it does not give us permission to depart from what we have
determined to be the best reading of the statutory text. See
New Prime Inc. v. Oliveira, 139 S. Ct. 532, 543 (2019).
Instead, as the district court explained, “[t]his case does not
call on [us] to decide what would be the fairest or most
effective way to assist SNAP recipients in this era of
COVID-19, because that judgment is committed to the
political branches.” 467 F. Supp. 3d at 840. And as discussed
above, it appears more likely that Congress had a different
policy objective in mind, consistent with USDA’s responses
to previous crises: to quickly top-off household benefits at
the maximum monthly allotment in light of difficult-to-
document disruptions in income.
Because Hall is unlikely to succeed on the merits of her
claims, the district court did not abuse its discretion in
denying a preliminary injunction.
AFFIRMED.
THOMAS, Chief Judge, dissenting:
The USDA’s interpretation of section 2302(a)(1) of the
Families First Coronavirus Response Act (“Families First
Act”), Pub. L. No. 116-127, 134 Stat. 178 (Mar. 18, 2020),
cannot be squared with the text of that provision or the
structure of the statute. Accordingly, Plaintiffs have
established a clear likelihood of success on their claim that
the agency’s interpretation cannot stand under 5 U.S.C.
§ 706(2). See also Winter v. Natural Res. Def. Council,
555 U.S. 7, 20 (2008) (setting forth preliminary injunction
factors); Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir.
28 HALL V. USDA
2015) (explaining that a mandatory injunction may not issue
unless the “law and facts clearly favor” the movant’s
position). Because I would reverse the denial of the
preliminary injunction and remand to the district court for
consideration of the remaining factors under Winter, I
respectfully dissent.
I
The Administrative Procedure Act (“APA”), 5 U.S.C.
§§ 500 et seq., requires courts to “hold unlawful and set
aside agency action” that is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law” or “in
excess of statutory jurisdiction [or] authority.” 5 U.S.C.
§ 706(2)(A), (C). The threshold question for “a court
reviewing an administrative interpretation of a statute” is
“whether Congress has spoken clearly on the issue.” Nw.
Ecosystem All. v. U.S. Fish & Wildlife Serv., 475 F.3d 1136,
1141 (9th Cir. 2007). If it has, the Court “must give effect
to the unambiguously expressed intent of Congress
regardless of the agency’s view.” Id. at 1141 (quotation
marks omitted); see also Resident Councils of Wash. v.
Leavitt, 500 F.3d 1025, 1031 (9th Cir. 2007) (“If Congress
has spoken directly to the question at hand, we may not defer
to a contrary agency interpretation.”). Only where the
statute is ambiguous may a court “turn to extrinsic evidence
such as legislative history” to determine its meaning. J.B. v.
United States, 916 F.3d 1161, 1167 (9th Cir. 2019).
Statutory language is “ambiguous only if it is susceptible to
more than one reasonable interpretation.” Id. (quotation
marks omitted).
A
Section 2302(a)(1) states, in pertinent part, that the
USDA must “provide . . . for emergency allotments to
HALL V. USDA 29
households participating in [SNAP] to address temporary
food needs not greater than the applicable maximum
monthly allotment for the household size.” In my view, the
most grammatical and logical construction of “not greater
than the applicable maximum monthly allotment” (the
“limiting clause”) is as a cap on the value of “emergency
allotments.” Congress did not qualify the phrase
“households participating in [SNAP].” Therefore, the
statute, by its plain terms, makes all SNAP households
eligible for emergency aid, not just those that had enough
income to afford some of their pre-COVID food needs.
B
The USDA counters that the limiting clause applies to
the sum total of regular and emergency allotments, thus
barring households that already receive the maximum
monthly allotment in non-pandemic conditions (i.e., the
neediest SNAP households) from receiving emergency aid.
But that is not what the statute says. An agency action may
neither amend a statute, Koshland v. Helvering, 298 U.S.
441, 447 (1936), nor add to a statute “something which is not
there,” United States v. Calamaro, 354 U.S. 351, 359 (1957).
Section 2302(a)(1) does not refer to the sum of emergency
and regular allotments; it refers to emergency allotments
alone. It would be incongruous to construe the statute as
imposing a statutory cap on something not mentioned in the
statute.
C
The majority and the USDA invoke related canons of
construction to construe the limiting clause as a cap on
“temporary food needs,” rather than “emergency
allotments.” The agency argues that the “last-antecedent
rule,” under which “a limiting clause or phase . . . should
30 HALL V. USDA
ordinarily be read as modifying only the noun or phrase that
it immediately follows,” Lockhart v. United States, 136 S.
Ct. 958, 963 (2016), requires construing “temporary food
needs” as the last antecedent to which section 2302(a)(1)’s
limiting clause applies. The majority invokes instead the
“nearest-reasonable-referent canon,” but concedes that the
“substance of the rule is the same”: “When the syntax
involves something other than a parallel series of nouns or
verbs, a prepositive or postpositive modifier normally
applies only to the nearest reasonable referent.” See also
United States v. Davis, 961 F.3d 181, 188 (2d Cir. 2020)
(“[T]he ‘nearest reasonable referent’ rule . . . seems to be a
close cousin of the well-established ‘rule of the last
antecedent.’”). Neither canon supports the agency’s
interpretation.
Courts typically apply the last-antecedent rule to statutes
that “include a list of terms or phrases followed by a limiting
clause.” Lockhart, 136 S. Ct. at 962 (emphasis added); see,
e.g., id. (applying the rule where a statute listed the following
predicate crimes: “aggravated sexual abuse, sexual abuse, or
abusive sexual conduct involving a minor or ward” (citing
18 U.S.C. § 2252(b)(2)) (emphasis added)); see also Yang v.
Majestic Blue Fisheries, LLC, 876 F.3d 996, 999 n.2 (9th
Cir. 2017) (“Under the last-antecedent rule, the series ‘A or
B with respect to C’ contains two items: (1) ‘A’ and (2) ‘B
with respect to C.’” (quotation marks omitted)), abrogated
on other grounds by GE Energy Power Conversion France
SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct.
1637 (2020). Section 2302(a)(1) is not such a statute.
Even assuming the canon can be applied in this context,
it favors Plaintiffs’ interpretation over the agency’s.
“[E]mergency allotments . . . to address temporary food
needs” is best read as a unified phrase that immediately
HALL V. USDA 31
precedes the limiting clause. See Lockhart, 136 S. Ct. at 963
(“[A] limiting clause or phase . . . should ordinarily be read
as modifying only the noun or phrase that it immediately
follows.” (emphasis added)). Indeed, this phrase “hangs
together as a unified whole, referring to a single thing,”
Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund, 138 S. Ct. 1061,
1077 (2018): emergency allotments with the purpose of
addressing temporary food needs. Accordingly, the “most
natural way to view the modifier”—“not greater than the
applicable maximum monthly allotment”—“is as applying
to the entire preceding clause.” Id. at 1077 (applying the
limiting phrase “as set forth in subsection (b)” to “any
covered class action” where the statute at issue referred to
“[a]ny covered class action brought in any State court
involving a covered security, as set forth in subsection (b)”
(citing 15 U.S.C. § 77p(c)) (emphasis added)); see also id.
(rejecting the government’s position that, under the last-
antecedent rule, the limiting phrase modified “involving a
covered security”).
Finally, even if “emergency allotments” and “temporary
food needs” are separate antecedents or referents, both the
last-antecedent and nearest-reasonable-referent canons
“must yield to the most logical meaning of a statute.” James
v. City of Costa Mesa, 700 F.3d 394, 399 n.7 (9th Cir. 2012)
(citation omitted); see also Grecian Magnesite Mining,
Indus. & Shipping Co., SA v. Comm’r of Internal Revenue
Serv., 926 F.3d 819, 824 (D.C. Cir. 2019) (“The nearest-
reasonable-referent canon—like its cousin, the last-
antecedent rule—‘is not an absolute and can assuredly be
overcome by other indicia of meaning.’” (quoting Lockhart,
136 S. Ct. at 963)). For the reasons stated herein, the
agency’s interpretation is neither the most logical nor
reasonable reading of section 2302(a)(1).
32 HALL V. USDA
D
The majority concedes that applying the statute’s
limiting clause to “temporary food needs” under the nearest-
reasonable-referent canon “does not end the analysis”
because “temporary food needs,” which lacks a statutory
definition, “is susceptible to multiple readings.”
Nevertheless, “three considerations” lead the majority to
conclude that the agency’s “reading of section 2302(a)(1) is
more consistent with the overall statutory scheme.” I
respectfully disagree.
1
First, section 2302(a)(2), an adjacent provision, does not
favor the USDA’s interpretation. To the extent that
provision permitted the USDA to “relax[] ‘application and
reporting requirements’” in recognition that the USDA
“might not have access to key information affecting
households’ eligibility for SNAP benefits, including changes
in income,” that does not mean section 2302(a)(1)’s
exclusive purpose is to “top-off benefits to offset sudden
disruptions in income,” To impute that purpose to section
2302(a)(1) is to read “temporary food needs” as “temporary
loss of income due to stay-at-home orders” or “temporary
food needs as a result of pandemic-related income loss.” If
Congress had intended that meaning, it could easily have
said so. Instead, it used the phrase “temporary food needs,”
which must logically be construed to mean “temporary food
needs” irrespective of their source.
If anything, section 2302(a)(2) favors Plaintiffs’
interpretation. Because the Families First Act does not
provide a mechanism for verifying income loss on a
household-by-household basis, and enables the USDA to
waive income reporting requirements, see Families First
HALL V. USDA 33
Act, § 2302(a)(2), 134 Stat. at 188, the USDA’s reading
would mean that households that have suffered no actual
income loss may receive emergency aid, while the poorest
households cannot. Because the USDA’s income-focused
conception of section 2302(a) would lead to this “absurd and
unjust result which Congress could not have intended,”
United States v. Middleton, 231 F.3d 1207, 1210 (9th Cir.
2000), it cannot be the “best reading of the statutory text.”
See Gilliam v. U.S. Dep’t of Agric., No. 20-cv-3504-JMY,
2020 WL 5501220, at *13 (E.D. Penn. Sept. 11, 2020)
(noting this “illogical result”).
Additionally, Plaintiffs’ reading finds support in another
nearby provision, section 2302(c), which reflects “a concern
that the pandemic would increase the cost of the thrifty food
plan.” Section 2302(c) instructs the USDA to submit a
report to Congress, within 18 months of the public health
emergency declaration being lifted, about “the measures
taken to address the food security needs of affected
populations during the emergency.” (emphasis added).
“Food security means access by all people at all times to
enough food for an active, healthy life.” USDA, Food
Security in the U.S., Overview (last updated November 13,
2020), https://www.ers.usda.gov/topics/food-nutrition-
assistance/food-security-in-the-us/ (emphasis added).
Because a household’s access to food depends on food costs
and supply, in addition to income, section 2302(c) belies the
conclusion that Congress did not intend to provide
emergency aid under section 2302(a)(1) to households that
can no longer afford to purchase adequate food with their
non-emergency SNAP benefit because of pandemic-related
food supply disruptions and inflation. Accordingly, the
statute, read as a whole, demonstrates a Congressional desire
“to address the pandemic’s impact on low-income
households’ access to food.”
34 HALL V. USDA
2
Next, there is no textual basis for concluding that
Congress intended the USDA to implement section
2302(a)(1)’s emergency allotments in the same way that the
agency has implemented disaster-response benefits under
7 U.S.C. § 2014(h)(1) of the Food and Nutrition Act of 2008
(“FNA”) 1—by taking a “topping-off” approach that
provides “supplemental allotments” to bring SNAP
households affected by a natural disaster up to the maximum
monthly allotment. See Disaster Snap Guidance 8, 35 (July
2014).
As a preliminary matter, and as the majority recognizes,
the agency’s D-SNAP guidance does not appear in published
regulations. Accordingly, there is no reason to “assume
Congress’s awareness” of that interpretation. United States
v. Ray, 375 F.3d 980, 991 n.14 (9th Cir. 2004). Even if
Congress was aware of supplemental D-SNAP assistance,
there is no evidence in the text or legislative history of
section 2302(a)(1) that Congress sought to replicate those
“supplements” when it provided for “emergency
allotments.” See Gilliam, 2020 WL 5501220, at *15 (“If
Congress had intended to provide COVID-19 relief under
the auspices of D-SNAP, it could have simply enacted a
provision stating that the COVID-19 public health
1
Section 2014(h)(1) directs the Secretary of Agriculture to
“establish temporary emergency standards of eligibility for the duration
of the emergency for households who are victims of a disaster which
disrupts commercial channels of food distribution, if such households are
in need of temporary food assistance and if commercial channels of food
distribution have again become available to meet the temporary food
needs of such households.” (emphasis added). Pursuant to this statutory
authority, the USDA established the Disaster Supplemental Nutrition
Assistance Program (“D-SNAP”).
HALL V. USDA 35
emergency is deemed a ‘disaster’ within the meaning of
[7 U.S.C.] § 2014(h)(1).”). Because section 2302(a)(1)
provides for “emergency allotments” instead of
“supplements” and does not refer to the USDA’s D-SNAP
procedures or 7 U.S.C. § 2014(h)(1), I am unpersuaded that
the appearance of the undefined term “temporary food
needs” in both 7 U.S.C. § 2014(h)(1) and section 2302(a)(1)
supports the USDA’s interpretation.
3
Finally, I disagree that Congress could not have intended
to make emergency allotments available to all SNAP
households, including the neediest, where it did not directly
increase the maximum monthly allotment, as it did in the
American Recovery and Reinvestment Act of 2009
(“Recovery Act”), Pub. L. No. 111-5, § 101(a)(1), 123 Stat.
115, 120 (Feb. 17, 2009) (providing for temporary
calculation of SNAP benefits at 113.6% of the thrifty food
plan).
This contention disregards key contextual differences
between the Recovery Act and the Families First Act:
“When Congress adopted a uniform, nationwide increase in
SNAP benefits in the Recovery Act, the country was months
into a national recession. When it enacted the Families First
Act, COVID-19’s impacts were just beginning, and their
severity varied greatly among states.” The latter context led
Congress to adopt a more flexible approach: “emergency
allotments to address state-specific needs, determined
through data on a state-by-state basis.” Because Congress
used different language the two statutes to accomplish
different results in response to different emergencies, the
rule that “Congress does not use different language in
different provisions to accomplish the same result” should
have no bearing on our interpretation of section 2302(a)(1).
36 HALL V. USDA
United States v. Fiorillo, 186 F.3d 1136, 1148 (9th Cir.
1999) (per curiam) (emphasis added).
To be sure, the Families First Act does not expressly
“direct[] the Secretary to calculate emergency allotments
based on a State-by-State analysis of fluctuating food costs
and availability” or “specify a mechanism by which the
Secretary would develop such regionally varying food
plans.” But, as previously noted, the USDA’s income-
focused conception of section 2302(a)(1) suffers from the
same flaw: The Families First Act does not specify a
mechanism for verifying income loss. Instead, the statute
simply directs states to support their requests for emergency
allotments with “sufficient data.” Families First Act,
§ 2302(a)(2), 134 Stat. at 188. There is no textual basis for
concluding that “sufficient data” excludes data regarding
“temporary food needs” resulting from sources other than
income loss, such as food supply disruptions. Indeed,
California’s initial request for emergency allotments for all
California SNAP households reflected the common-sense
understanding that “temporary food needs” may arise from
both the loss of “essential earned income” and a shortfall in
affordable food, which places “pressure on the emergency
food network.”
The majority further concludes that Plaintiffs’
interpretation runs afoul of the principle that Congress “does
not alter the fundamental details of a regulatory scheme in
vague terms or ancillary provisions.” In other words,
Congress “does not, one might say, hide elephants in
mouseholes,” Whitman v. Am. Trucking Ass’ns, 531 U.S.
457, 468 (2001)). This conclusion has two premises:
(i) Plaintiffs’ interpretation has the “dramatic impact” of
increasing monthly SNAP benefits by 200%, and
(ii) Congress would not hide such an “elephant” under the
HALL V. USDA 37
“vague,” “inconspicuous,” and “nondescript heading
‘Additional SNAP Flexibilities in a Public Health
Emergency.’” Compare Families First Act, § 2302,
134 Stat. at 188 with Recovery Act, § 101(a), 123 Stat.
at 120 (enacting increase to thrifty food plan under heading
“Maximum Benefit Increase”).
Both premises are flawed. First, Plaintiffs’ interpretation
would only permit the poorest households to double their
SNAP benefits if (i) a state agency requested that increase;
and (ii) a state agency supported that request with “sufficient
data (as determined by the Secretary through guidance).”
Families First Act, § 2302(a)(1), 134 Stat. at 188. That is
hardly a “dramatic” overhaul of the SNAP regulatory
scheme, but rather a measured, reality-driven response to an
“unprecedented pandemic of varying geographic severity
and unknown duration.” Gilliam, 2020 WL 5501220,
at *15. 2
Second, even if section 2302(a)(1) amounts to an
“elephant,” it does not hide in a “mousehole.” See Bostock
v. Clayton Cnty., 140 S. Ct. 1731, 1753 (2020) (explaining
that a litigant “cannot hide behind the no-elephants-in-
mouseholes canon” without answering “[w]here’s the
mousehole?”). Along with section 2301, section 2302 falls
under Title III, “SNAP Waivers.” Far from being a
“mousehole,” “SNAP Waivers” announces Congress’s
intent to suspend enumerated aspects of the SNAP scheme
during a public health crisis. See Families First Act,
2
Notably, California’s denied request did not seek an aggregate
benefit issuance exceeding the amount allowable under the USDA’s
interpretation. See Gilliam, 2020 WL 5501220, at *6 (explaining that
Pennsylvania proposed to issue all SNAP households an emergency
allotment equal to 50% of the maximum monthly allotment for their
household size).
38 HALL V. USDA
§§ 2301(a), 134 Stat. at 187–88 (waiving SNAP work
requirements under 7 U.S.C. § 2015(o)(2), subject to one
exception, in an effort to provide “SNAP Flexibility for
Low-Income Jobless Workers”), 2302(a)(2), 134 Stat. at 188
(authorizing the USDA to waive, under certain conditions,
the FNA’s reporting and application requirements).
In short, these three considerations cannot bear the
weight of the USDA’s interpretation.
E
The USDA further contends that Congress’s subsequent
passage of appropriations in the Coronavirus Aid, Relief,
and Economic Security Act (“CARES Act”), Pub. L. No.
116-136, 134 Stat. 281 (Mar. 27, 2020), demonstrates that it
agreed with the USDA’s interpretation of section 2302(a).
The majority does not rely on this consideration, and for
good reason. There is no evidence in the record, nor in the
CARES Act, that Congress itself was aware of—still less
relied on—that estimate in appropriating $15.81 billion for
SNAP under the CARES Act. Indeed, the USDA does not
claim that its estimate—much less any assumptions made in
preparing any estimate—was included in a committee report
or otherwise communicated to Congress.
F
In sum, Plaintiffs have established a likelihood of
success on the merits of their claim, and the district court
erred in concluding otherwise. The plain language of section
2302(a)(1) compels the conclusion that Congress did not
intend to limit the emergency assistance available under that
provision to the maximum amount that SNAP households
may receive under non-emergency conditions.
HALL V. USDA 39
II
The district court did not reach the remainder of the
Winter factors because it rested its decision on the first
factor. I would remand this case to the district court for
“consideration of the remaining Winter factors in the first
instance.” Evans v. Shoshone-Bannock Land Use Policy
Comm’n, 736 F.3d 1298, 1307 (9th Cir. 2013) (citation
omitted).
For these reasons, I respectfully dissent.