United States District Court, D. Columbia.
Romeo Morgan, Plaintiff, Pro se, Washington, DC.
For Jaime Ragan, U.S. Department of Agriculture, Food and Nutrition Service (FNS), Defendant: John G. Interrante, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
COLLEEN KOLLAR-KOTELLY, United States District Judge.
Plaintiff Romeo Morgan has filed suit against Defendants Jaime Ragan and the
U.S. Department of Agriculture, Food and Nutrition Service, Supplemental Nutrition Assistance Program, seeking review of the FNS's Final Agency Decision sustaining a decision by FNS Retailer Operations to withdraw the authorization of Morgan's Seafood, owned by Plaintiff, to participate as a retailer in the Supplemental Nutrition Assistance Program. Presently before the Court is Plaintiff's  Motion for an Emergency Stay, which seeks to stay this withdrawal. Upon consideration of the pleadings , the relevant legal authorities, and the record at this point in the proceedings, the Court finds that Plaintiff is unlikely to succeed on the merits of his claim and has not made a sufficient showing of irreparable harm in the absence of a stay. Given these considerations, the Court finds that the stay sought by Plaintiff is not warranted at this time and Plaintiffs' motion is DENIED.
A. Statutory Background
Congress created the food stamp program in 1964 to " permit those households with low incomes to receive a greater share of the Nation's food abundance." The Food Stamp Act of 1964, Pub. L. No. 88-525, § 2, 78 Stat. 703, 703. " Retail stores authorized to participate in the program may accept food stamp benefits instead of cash for designated food items." Affum v. United States, 566 F.3d 1150, 1153, 386 U.S. App.D.C. 104 (D.C. Cir. 2009) (citing 7 U.S.C. § 2013(a).). " The stores then redeem these benefits with the government for face value." Id. In 2008, Congress amended the Food Stamp Act, renaming it the Food and Nutrition Act and renaming the " food stamp program" the " supplemental nutrition assistance program" or " SNAP." Id.
A business seeking approval as a " retail food store" under SNAP must comply with the requirements of 7 U.S.C. § 2018. This provision authorizes the Secretary of Agriculture to issue regulations governing the approval and reauthorization of retail food stores to participate in the SNAP. 7 U.S.C. § 2018(a)(2). Pursuant to this statutory authority, the Secretary has issued the regulation at issue here, 7 C.F.R. § 278.1. This provision states, in relevant part, that the Food and Nutrition Service of the Department of Agriculture (" FNS" ), " shall withdraw the authorization of any firm authorized to participate in the program for any of the following reasons: . . . (iii) The firm fails to meet the requirements for eligibility under Criterion A or B, as specified in paragraph (b)(1)(i) of this section . . . ." 7 C.F.R. § 278.1(l)(1).
Criterion A and B are standards governing the variety and quantity of food sold by a particular retailer. In order to meet Criterion A, the store must offer " for sale, on a continuous basis, a variety of qualifying foods in each of the four categories of staple foods as defined in § 271.2 of this chapter, including perishable foods in at least two of the categories." Id. § 278.1(b)(1)(i)(A). See also id. § 278.1(b)(1)(ii) (explaining this definition in greater detail). Criterion B is satisfied if " more than 50 percent of the total gross retail sales of the establishment or route [are] in staple foods." Id. § 278.1(b)(1)(i)(A). See also id. § 278.1(b)(1)(iii) (explaining this definition in greater detail). As defined by 7 C.F.R. § 271.2, " [s]taple food means those food items intended
for home preparation and consumption in each of the following food categories: meat, poultry, or fish; bread or cereals; vegetables or fruits; and dairy products." Id. § 271.2.
Another provision of 7 C.F.R. § 278.1 sets out " ineligible firms" for participation in the SNAP, and explicitly qualifies Criterion A and B. This provision states:
Ineligible firms under this paragraph include, but are not limited to, stores selling only accessory foods, including spices, candy, soft drinks, tea, or coffee; ice cream vendors selling solely ice cream; and specialty doughnut shops or bakeries not selling bread. In addition, firms that are considered to be restaurants, that is, firms that have more than 50 percent of their total gross retail sales in hot and/or cold prepared foods not intended for home preparation and consumption, shall not qualify for participation as retail food stores under Criterion A or B. This includes firms that primarily sell prepared foods that are consumed on the premises or sold for carryout. Such firms may qualify, however, under the special restaurant programs that serve the elderly, disabled, and homeless populations, as set forth in paragraph (d) of this section.
Id. § 278.1(b)(1)(iv) (emphasis added).
B. Factual Background
In March 2008, FNS authorized Morgan's Seafood, an unincorporated business in Washington, DC, to participate in the SNAP. AR 1-13. On June 14, 2013, Plaintiff, as the owner of Morgan's Seafood, completed an FNS-252-R reauthorization application in order to continue his participation in the program. AR 51. As part of its review of this application and its assessment of the continued eligibility of Morgan's Seafood to participate in the SNAP, FNS contract review officials conducted two separate store visits of Morgan's Seafood. AR 14-50, 90-116. These visits occurred on November 7, 2013 and January 3, 2014. The November 7, 2013 review identified as issues " empty coolers" and " broken coolers" and provided the following observations:
1) Owner stated that his display cooler is broken, forcing him to store most of his seafood in the back coolers. The food used for making hot food was mixed  with the raw (as-is) seafood but the reviewer asked what is what. Prepared salads are also in the back coolers. The beef/meat/sausage in the storage cooler was for cooking only, per owner.
2) The empty tank in photo #693 is of a tank that was full of lobsters that were stolen by burglars, per owner statement.
3) Prices for the deli are not posted. Owner claims that he recently acquired the cooler and deli products but has not created a price list. The menu did not include sandwiches.
4) The prepared cold salads and the yams are also for sale as-is or by themselves, per owner, if customers choose so. However, the cooked yams are on the menu and salads come as sides to hot dishes.
AR 15. The January 3, 2014 visit also noted " empty coolers" and " broken coolers" and offered the following comments:
Store did not have prices posted for meat/cheese. Owner stated that alcohol is not for sale, it's for personal use even though it's posted on the menu so I did not mark alcohol ...