Monica Navarro Pimentel v Susan Dreyfus

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MONICA NAVARRO PIMENTEL, 

individually and on behalf of a

class of similarly situated persons,

Plaintiff-Appellee, No. 11-35237

v.

 D.C. No.

2:11-cv-00119-MJP

SUSAN DREYFUS, in her official

capacity as Secretary of the OPINION

Washington State Department of

Social and Health Services,

Defendant-Appellant.



Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, Chief District Judge, Presiding

Argued and Submitted

August 29, 2011—Seattle, Washington

Filed February 29, 2012

Before: Michael Daly Hawkins, M. Margaret McKeown, and

Carlos T. Bea, Circuit Judges.

Per Curiam Opinion

2201

2204 PIMENTEL v. DREYFUS

COUNSEL

Jay D. Geck (argued) and Joseph Christy (briefed), Office of

the State Attorney General, Olympia, Washington, for the

defendant-appellant.

Gregory D. Provenzano, (briefed and argued), Columbia

Legal Services, Olympia, Washington, for the plaintiff-

appellee.

Susanna Y. Chu, Kaye Scholer LLP, Washington, D.C., for

amicus Legal Momentum.

OPINION

PER CURIAM:

Plaintiff Monica Navarro Pimentel (“Pimentel”) represents

a class of legal immigrants in the state of Washington

adversely affected by its recent termination of a state-funded

PIMENTEL v. DREYFUS 2205

food assistance program for legal immigrants, which exclu-

sively benefitted Washington resident aliens who became

ineligible for federal food stamps following the enactment of

the Personal Responsibility and Work Opportunity Reconcili-

ation Act of 1996.1 Pimentel contends that the state, by elimi-

nating food assistance to class members while continuing to

administer federal food assistance to U.S. citizens and certain

qualified aliens, violates the Fourteenth Amendment’s Equal

Protection Clause and, by failing to provide class members

adequate pre-deprivation notice and opportunity to be heard,

also violates the Fourteenth Amendment’s Due Process

Clause. The district court granted preliminary injunctive relief

on both counts, enjoining the state from terminating or reduc-

ing state-funded food assistance for class members and order-

ing the state to provide certain class members individualized

determination notices before terminating or reducing their

benefits. Susan Dreyfus (“Dreyfus”), in her capacity as Secre-

tary of Washington’s Department of Social and Health Ser-

vices, appeals. We reverse, vacate the preliminary injunction,

and remand for further proceedings.

BACKGROUND FACTS AND PRIOR PROCEEDINGS

I. Statutory and Regulatory Framework

A. The Federal Food Stamp Program

The Food Stamp Act of 1964, 7 U.S.C. § 2011 et seq.,

established a state-administered, federal food assistance pro-

gram, currently called the Supplemental Nutrition Assistance

Program (“SNAP”), for qualifying low-income households.

SNAP’s purpose is to alleviate hunger and malnutrition

among low-income households and increase their food pur-

chasing power by issuing food stamps and electronic benefits.

See 7 U.S.C. § 2011.

1

This Act is commonly known and referred to herein as the “Welfare

Reform Act,” Pub. L. No. 104-193, 110 Stat. 2105 (Aug. 22, 1996), 8

U.S.C. § 1601 et seq.

2206 PIMENTEL v. DREYFUS

While the U.S. Department of Agriculture determines uni-

form program-eligibility criteria and benefit-calculation for-

mulae, individual participating states are responsible for

certifying qualifying households and issuing benefits. See id.

§§ 2014-2017; 8 C.F.R. Part 273. State participation is

optional, but participating states must submit a plan of opera-

tion to the federal government, comply with applicable fed-

eral laws and regulations, and agree to spend state funds to

cover fifty percent of the program’s administrative costs. Id.

§§ 2020(e), 2025. The federal government pays for the other

fifty percent of administrative costs, as well as the entire cost

of the actual food benefits. Id. § 2025.

Although the program has excluded undocumented immi-

grants since its inception, most legal immigrants were eligible

for federal food stamps prior to 1996 subject to the program’s

income qualifications.

B. The Welfare Reform Act of 1996

In 1996 Congress passed the Welfare Reform Act (or “PR-

WORA”),2 which dramatically altered alien-eligibility

requirements for federal public benefits3 and for state and

local public benefits.4 One of its stated purposes was to fur-

2

As used herein, the “Welfare Reform Act” or “PRWORA” refers to the

Personal Responsibility and Work Opportunity Reconciliation Act as

amended by the Balanced Budget Act of 1997, Pub. L. No. 105-33,

§§ 5301-5304, 5306, 5562-5563, 111 Stat. 251 (1997), and the Agricul-

tural Research, Extension, and Education Reform Act of 1998, Pub. L. No.

105-185, §§ 503-508, 112 Stat. 523 (1998).

3

Title IV of PRWORA defines a “federal public benefit” as one “for

which payments or assistance are provided to an individual, household, or

family eligibility unit by [(1)] an agency of the United States or [(2)] by

appropriated funds of the United States.” 8 U.S.C. § 1611(c).

4

Title IV of PRWORA defines a “state or local public benefit” as one

“for which payments or assistance are provided to an individual, house-

hold, or family eligibility unit by [(1)] an agency of a State or local gov-

ernment or [(2)] by appropriated funds of a State or local government,”

PIMENTEL v. DREYFUS 2207

ther the national immigration policy that “aliens within the

Nation’s borders not depend on public resources to meet their

needs, but rather rely on their own capabilities and the

resources of their families, their sponsors, and private organi-

zations, and . . . [that] the availability of public benefits not

constitute an incentive for immigration to the United States.”

8 U.S.C. § 1601(2).

The Act classifies aliens into two general categories: “qual-

ified aliens” and “non-qualified aliens.” See id. § 1641. Quali-

fied aliens include aliens lawfully admitted for permanent

residence, asylees, refugees, aliens paroled into the United

States for at least one year, aliens whose deportation is being

withheld, aliens who have been granted conditional entry, cer-

tain Cuban and Haitian entrants, and certain victims of battery

or extreme cruelty by a spouse or other family member. See

8 U.S.C. § 1641(b)-(c). All other aliens are deemed non-

qualified aliens.

“Qualified” status is essentially a prerequisite for federal

benefits: non-qualified aliens are, with some exceptions not

relevant here, ineligible for federal benefits, see id. § 1611(a)

& (b), whereas qualified aliens are eligible for federal bene-

fits, including SNAP, only if they meet additional criteria.

Generally, only qualified aliens who have maintained their

qualified status for five or more years are eligible for federal

benefits, though there are numerous exceptions to this rule.5

excluding any federal public benefit as defined under 8 U.S.C. § 1611(c).

8 U.S.C. § 1621(c)(1), (3). Thus, a federally funded benefit is still consid-

ered a “federal public benefit” even if administered by a state or local

agency. Likewise, a joint federal-state cooperative partnership is consid-

ered a federal public benefit even if the state contributes its own funds.

Though states administer SNAP and fund fifty percent of the program’s

administrative costs, SNAP is a federal public benefit as defined under

PRWORA.

5

The following subclasses of qualified aliens are eligible for SNAP ben-

efits: (1) refugees, asylees, aliens whose deportation is being withheld,

2208 PIMENTEL v. DREYFUS

Initially, the Act barred nearly all non-qualified aliens from

even receiving state (or local) public benefits, including state-

funded food assistance.6 On the other hand, states administer-

ing state-funded programs are required to extend eligibility to

certain classes of qualified aliens.7 For any aliens neither

barred from receiving nor required to receive state benefits,

states were to determine their own eligibility requirements.

See id. § 1622(a). A year after enactment, Congress extended

certain Cuban and Haitian entrants, and certain Amerasian immigrants,

who remain eligible for SNAP for seven years after the date they are

admitted into the United States or granted the relevant status, see 8 U.S.C.

§ 1612(a)(2)(A); (2) permanent resident aliens who have worked for forty

qualifying quarters under the Social Security Act, see id. § 1612(a)(2)(B);

(3) aliens who are veterans or on active duty, as well as their spouses and

dependent children, see id. § 1612(a)(2)(C); (4) aliens who were lawfully

residing in the United States when PRWORA was enacted and who are

receiving benefits or assistance for blindness or disability within the mean-

ing of the Food Stamp Act of 1977, see id. § 1612(a)(2)(F); (5) members

of Indian tribes and certain American Indians born in Canada, see id.

§ 1612(a)(2)(G); (6) aliens who were 65 or older and lawfully residing in

the United States when PRWORA was enacted, see id. § 1612(a)(2)(I); (7)

aliens under age 18, see id. § 1612(a)(2)(J); (8) certain Hmong or High-

land Laotians lawfully residing in the United States, as well as their

spouses and dependent children, see id. § 1612(a)(2)(K); and (9) any qual-

ified alien who has resided in the United States with a status within the

meaning of the term “qualified alien” for at least five years, beginning on

the date of the alien’s entry into the United States, see id. § 1612(a)(2)(L);

see also id. § 1613(a) (general five-year residency requirement for all fed-

eral means-tested public benefits). See also 7 U.S.C. § 2015(f) (containing

SNAP eligibility restrictions based on alienage).

6

This bar did not apply to nonimmigrants as defined under the Immigra-

tion and Nationality Act or aliens paroled into the United States under 8

U.S.C. § 1182(d)(5) for less than one year. See 8 U.S.C. § 1621(a) & (b).

7

This group includes: (1) refugees, asylees, aliens whose deportation is

being withheld, and certain Cuban and Haitian entrants, who remain eligi-

ble for five years after attaining the relevant status, as well as Amerasian

immigrants, see id. § 1622(b)(1); (2) permanent resident aliens who have

worked for forty qualifying quarters under the Social Security Act, see id.

§ 1622(b)(2); and (3) aliens who are veterans or on active duty, as well as

their spouses and dependent children, see id. § 1622(b)(3).

PIMENTEL v. DREYFUS 2209

this discretionary authority to cover any legal aliens rendered

ineligible for federal food stamps by PRWORA’s restrictions.

See Title VII of the Emergency Supplemental Appropriations

Act of 1997, Pub. L. No. 105-18 (1997), codified at 7 U.S.C.

§ 2016(i). Under 7 U.S.C. § 2016(i), states may even issue

SNAP benefits to such persons so long as the state then reim-

burses the U.S. Secretary of Agriculture for the value of the

benefit and for all administrative costs associated with its

issuance. In other words, though states may issue federally

ineligible legal aliens food benefits pursuant to the Food

Stamp Act, such benefits are to be wholly funded by the state

itself.

C. Washington’s Food Assistance Program

Washington has participated in the federal food stamp pro-

gram since its inception, distributing federal benefits to aliens

and citizens without distinction through the Basic Food Pro-

gram, which is administered by the state’s Department of

Social and Health Services (“DSHS”). See RCW 74.04.500

(“Food stamp program—Authorized”).

Upon enactment of the Welfare Reform Act, however,

Washington’s food stamp program automatically conformed

to the new eligibility requirements concerning aliens. See

RCW 74.04.510 (“Food stamp program— Rules.”). Thus,

consistent with the federal guidelines, only U.S. citizens and

certain qualified aliens remained eligible to receive federally

funded SNAP benefits under the Basic Food Program. See

WAC 388-424-0020.

In 1997, Washington exercised its option to continue pro-

viding newly SNAP-ineligible legal immigrants with state-

funded food benefits, enacting the Food Assistance Program

for Legal Immigrants (“FAP”), also administered by DSHS.8

8

As of November 2010, Washington was one of only seven states

administering a state-funded food assistance program as a supplement to

the federal food assistance program. The other states are California, Con-

necticut, Maine, Minnesota, Nebraska, and Wisconsin.

2210 PIMENTEL v. DREYFUS

See RCW 74.08A.120 (providing that “[t]he rules for the state

food assistance program shall follow exactly the rules of the

federal food stamp program except for the provisions pertain-

ing to immigrant status”). Under FAP, legal immigrants are

eligible for state-funded food benefits if (1) they meet the pre-

PRWORA alien-status requirements of the Food Stamp Act,

and (2) their ineligibility for federal food stamps is due solely

to PRWORA’s alien-status eligibility provisions, as defined at

WAC 388-424-0020. See WAC 388-424-0025.

DSHS began administering both SNAP and FAP benefits

under its Basic Food Program, determining eligibility and

monthly benefits at the household level. A Washington house-

hold is eligible for Basic Food benefits so long as at least one

member of the household is eligible for either SNAP or FAP

benefits. DSHS regulations allow households to receive both

SNAP and FAP benefits, provided the total household benefit

does not exceed a certain maximum allotment. See WAC 388-

400-0045, 388-478-0060.9 Legal immigrants residing in

Washington who had been receiving federally funded Basic

Food benefits pre-PRWORA but who no longer qualified for

SNAP, experienced no break in their coverage. However,

their benefits were now fully funded by the state.

DSHS uses a single application form and a single

eligibility-review form for food, medical, cash, and other pub-

lic benefits. Beyond asking applicants to indicate (1) whether

they are U.S. citizens, and (2) if not, whether they have docu-

mentation of their immigration status, neither the application

nor the eligibility-review form indicates two separate funding

sources or otherwise distinguishes between federally and

state-funded food benefits. Although DSHS determines each

applicant’s eligibility for either federal or state food benefits,

9

The current maximum monthly benefit is $200 for a household of one,

$367 for a household of two, $526 for a household of three, $666 for a

household of four, with higher amounts for larger households. WAC 388-

478-0060.

PIMENTEL v. DREYFUS 2211

it does not communicate these determinations to recipients,

informing them simply whether they are eligible for “food

assistance benefits” or not.

II. Plaintiff Monica Navarro Pimentel

Pimentel has been receiving food assistance benefits since

2005. Her household, or “assistance unit,” currently consists

of herself and her three children, ages fifteen, six, and two.

Her two youngest children are U.S. citizens.

Pimentel first applied for Basic Food benefits in 2005, on

behalf of herself and her two children; her youngest child was

not yet born. She recalls completing only a single application

form for food assistance, and that form did not distinguish

between SNAP and FAP benefits. She was told, in a letter

from the state, that she was approved for expedited food assis-

tance benefits in the amounts of $100 and $94 for the next

two months, respectively. A separate letter notified her that

she and her oldest child “A.N.P.” were denied food assistance

benefits because “[i]mmigrants have to meet certain require-

ments to get these benefits. You do not meet these require-

ments.” The letter cited several provisions of the Washington

Administrative Code, namely WAC 388-424-0005, 388-424-

0010, 388-424-0015, 388-424-0020, 388-424-0025, 388-462-

0015, 388-505-0110, 388-505-0210, and referred Pimentel to

a government website. Finally, the letter informed her that

“[i]f you disagree with any of our decisions, you may ask to

have your case reviewed. You can also ask for a fair hearing.

Your fair hearing rights are included in this letter.” Pimentel

does not recall receiving more specific information from

DSHS regarding which immigration requirements she and

A.N.P. failed to satisfy.

A year later, Pimentel filed an I-360 self-petition under the

Violence Against Women Act of 1994 (“VAWA”) on behalf

of herself and A.N.P. She was subsequently informed,

through an I-797 notice, that she had established a prima facie

2212 PIMENTEL v. DREYFUS

case under the VAWA’s self-petitioning provisions, qualify-

ing her and her son to receive certain public benefits while

they awaited a final decision. Pimentel immediately submitted

to DSHS an updated eligibility-review form, attaching the I-

797 notice. Her monthly food assistance benefit was subse-

quently increased to $245.

Soon thereafter, Pimentel received a second notice from the

federal government, advising her that her VAWA self-petition

had been approved and that U.S. Citizenship and Immigration

Services had placed her case under deferred action. She

requested and was approved deferred action for her and

A.N.P., and both are now pursuing legal permanent residence

(“LPR”).

As a victim of domestic abuse, Pimentel is a “qualified

alien,” as defined in WAC 388-424-0001, who would other-

wise be eligible for SNAP benefits, but for the citizenship and

alien-status requirements of WAC 388-424-0020. Pimentel’s

attorneys maintain that A.N.P., as a minor child of a victim

of domestic abuse, is eligible for SNAP benefits under WAC

388-424-0020(2)(b)(i) and (ii).

Pimentel’s youngest child was born in late 2008, and she

reported this fact to DSHS about a month later. DSHS then

increased her monthly food assistance amount to $565.

III. FAP Elimination

A. DSHS Repeals FAP

In September 2010, DSHS announced in the Washington

State Register that, pursuant to RCW 74.04.050, it might

amend or repeal its rules related to eligibility and benefit

levels for the state-funded FAP due to budget cuts. Wash. St.

Reg. 10-19-135. In November, DSHS published notice of a

proposed rulemaking that would amend WAC 388-400-0040,

388-424-0020, and 388-489-0025 and repeal WAC 388-400-

PIMENTEL v. DREYFUS 2213

0045 and 388-424-0025. Wash. St. Reg. 10-23-109. DSHS

provided a public comment period through December 21 and

held a public hearing on that day. Meanwhile, on December

15, Governor Gregoire released her proposed 2011-2013

operating budget, which would eliminate FAP. On December

17, the governor released her proposed 2011 supplemental

budget bill, which would eliminate FAP for the balance of the

2009-2011 fiscal term, saving an additional $7.21 million in

state funds. DSHS adopted the new regulation on December

29, terminating FAP, effective February 1, 2011. WAC 388-

400-0040.

DSHS headquarters notified its regional administrators that

FAP was being eliminated as a result of budget reductions.

According to John Camp, Administrator for Food Assistance

Programs, approximately 10,581 households were receiving

state food assistance as of December 2010. Of those, approxi-

mately 3,491 households were receiving only FAP benefits,

while 7,090 households received a combination of SNAP and

FAP benefits.

B. Notice Program

1. First Notice

DSHS sent a January 16, 2011 letter to assistance units

receiving FAP benefits, such as Pimentel’s household. Listing

a number of administrative regulations, the letter informed

recipients that “[t]he state-funded Food Assistance Program

(FAP) will end 01/31/11 because of state budget cuts. You

don’t have administrative hearing rights when a program

ends.” However, at the end of the letter was the following: “If

you disagree with any of our decisions, you may ask to have

the case reviewed. You can also ask for an administrative

hearing.” The letter listed the members of the assistance unit

who, according to DSHS, had been receiving FAP benefits,

and set forth the amount of monthly Basic Food benefits that

the household would receive when these benefits terminated

2214 PIMENTEL v. DREYFUS

on January 31. Pimentel’s notice identified her and her son

A.N.P. as recipients who would no longer receive state-

funded FAP benefits after January 31 due to the program’s

termination.

2. Second Notice

DSHS sent a second notice to assistance units composed of

individuals eligible for both federal and state food assistance.

Pimentel received this notice, informing her that “[t]he num-

ber of people getting assistance with you has changed” and

reiterating that “[t]he state-funded Food Assistance Program

(FAP) will end 01/31/11 because of state budget cuts. You

don’t have administrative hearing rights when a program

ends.” The notice went on to explain that “FAP provides food

benefits to legal immigrants who don’t meet the citizenship or

alien status rules for federally-funded food benefits. If your

household includes people eligible to receive federally-funded

food benefits, your food assistance includes both FAP and

federally-funded food benefits. This change won’t affect your

household’s receipt of federally-funded food benefits.” Like

the first notice, the end of the second notice informed Pimen-

tel of her ability to “ask for an administrative hearing.”

The letter provided no explanation as to how DSHS deter-

mined Pimentel’s and her son’s alien status. Pimentel says she

could not determine whether DSHS had properly calculated

her household’s federal Basic Food benefits because the letter

did not explain why she or her eldest son did not meet the citi-

zenship or alien-status requirements for federal Basic Food

benefits, nor did it indicate what information DSHS relied on

in making its determination. According to Pimentel, the letter

also failed to show adequately how DSHS prorated any ineli-

gible member’s income or allowable expenses in accordance

with WAC 388-450-0140, or otherwise set forth the income,

deduction, and expense figures used by DSHS so that Pimen-

tel could review DSHS’s computation of SNAP benefits on

her own. Pimentel avers that these letters were the first notice

PIMENTEL v. DREYFUS 2215

she ever received from DSHS that she and A.N.P. had been

receiving state-funded assistance under FAP rather than feder-

ally funded assistance under SNAP. Her attorneys confirm

that, based on their review of documents Pimentel received

from DSHS (produced in response to their request for public

records), none of the prior notices Pimentel received from

DSHS indicated that she and A.N.P. were receiving state-

funded, rather than federally funded, food benefits, nor did

they indicate why Pimentel and A.N.P. were ineligible for

federal food assistance.

3. Third Notice

After commencement of this lawsuit, DSHS sent a third

notice to assistance units receiving state-funded food assis-

tance benefits, intended to explain which household members

were ineligible for federal food assistance benefits due to their

alien or citizenship status. Pimentel received one of these

notices, dated February 3, 2011. Her notice states the follow-

ing:

[Monica S. Navarro Pimentel and A.N.P.] are not

eligible for federally-funded Supplemental Nutrition

Assistance Program (SNAP) benefits under the

Washington Basic Food program because they do

not meet the citizenship or alien status requirements

under WAC 388-400-0040 and 388-424-0020. We

reviewed the following documents to decide whether

these persons are eligible for federal SNAP benefits

through the Washington Basic Food program:

...

USCIS I-797, Supplemental Notice of Deferred

Action dated 1-11-11

USCIS I-797, Supplemental Notice of Deferred

Action dated 1-17-09 (Expired)

2216 PIMENTEL v. DREYFUS

USCIS I-797, Establishment of Prima Facie case

dated 6-12-06 (Expired)

USCIS I-797C, I360 Petition of Amerasian, Wid-

ower or special immigrant dated 5-18-06

...

If you disagree with any of our decisions, you may

ask to have the case reviewed. You can also ask for

an administrative hearing. Administrative hearing

rights are included in this letter.

IV. Procedural History

Pimentel filed this action on behalf of herself and others

similarly situated, seeking class certification under Federal

Rules of Civil Procedure 23(a) and 23(b)(2) and declaratory,

injunctive, and other appropriate relief pursuant to 28 U.S.C.

§§ 2201 and 2202, 42 U.S.C. § 1983, and Federal Rules of

Civil Procedure 23, 57, and 65.

The district court entered a temporary restraining order

(“TRO”) on January 28, 2011 and certified both a class for

purposes of the equal protection claim and a subclass for pur-

poses of the due process claim. The Equal Protection Class

comprises approximately 10,350 households, or approxi-

mately 14,350 persons, who (a) “were receiving state-funded

Basic Food benefits under FAP and received notification that

these benefits would terminate,” or (b) are qualified aliens (or

persons permanently residing in the United States under color

of law) who in the future would be eligible for Basic Food

benefits, but for the fact that they do not meet the citizenship

and alien-status requirements of WAC 388-424-0020. The

Due Process Subclass is comprised of Washington “residents

who . . . are receiving state-funded Basic Food benefits now

and whose benefits are being reduced or terminated . . . .”

PIMENTEL v. DREYFUS 2217

The district court later issued a preliminary injunction,

finding that (1) Pimentel was likely to succeed on both her

equal protection and due process claims, (2) she and other

class members would suffer irreparable injury without such

relief, (3) the balance of hardships tips in the class members’

favor, and (4) the public interest supported the issuance of the

injunction. The court enjoined Secretary Dreyfus from termi-

nating Pimentel’s or other class members’ state-funded food

assistance while the litigation was pending, and ordered the

state to provide Due Process Subclass members with individu-

alized determination notices explaining their ineligibility for

the federally funded SNAP program.

The day after the district court issued the preliminary

injunction, the Washington legislature signed into law

Engrossed Substitute House Bill 1086 (“ESHB 1086”), effec-

tive immediately, providing a supplemental operating budget

for the remainder of fiscal year 2011 (i.e., until June 30,

2011), which mandated that FAP benefits “be fifty percent of

the [SNAP] benefit amount.” 2011 Wash. Sess. Law 78.

Shortly after reinstatement of partial funding for FAP through

enactment of ESHB 1086, DSHS moved for reconsideration

of the injunction, which the district court denied.

STANDARD OF REVIEW

We review a district court’s decision to grant or deny a pre-

liminary injunction for abuse of discretion. Alliance for the

Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).

In deciding whether the district court has abused its discre-

tion, we employ a two-part test: first, we “determine de novo

whether the trial court identified the correct legal rule to apply

to the relief requested”; second, we determine “if the district

court’s application of the correct legal standard was (1) illogi-

cal, (2) implausible, or (3) without support in inferences that

may be drawn from the facts in the record.” Cal. Pharmacists

Ass’n v. Maxwell-Jolly, 596 F.3d 1098, 1104 (9th Cir. 2010)

(internal quotation marks and citations omitted), cert. granted

2218 PIMENTEL v. DREYFUS

on other grounds, 131 S.Ct. 992 (2011). A decision based on

an erroneous legal standard or a clearly erroneous finding of

fact amounts to an abuse of discretion. Id. The district court’s

conclusions of law are reviewed de novo and its findings of

fact for clear error. Alliance for the Wild Rockies, 632 F.3d at

1131.

DISCUSSION

A plaintiff seeking a preliminary injunction must establish

(1) likely success on the merits; (2) likely irreparable harm in

the absence of preliminary relief; (3) that the balance of equi-

ties tips in the plaintiff’s favor; and (4) that an injunction is

in the public interest. Winter v. Natural Res. Def. Council,

Inc., 555 U.S. 7, 20 (2008). Under the “sliding scale”

approach to preliminary injunctions observed in this circuit,

“the elements of the preliminary injunction test are balanced,

so that a stronger showing of one element may offset a

weaker showing of another.” Alliance for the Wild Rockies,

632 F.3d at 1131 (citing Clear Channel Outdoor, Inc. v. City

of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003)). “[A]t an

irreducible minimum,” though, “the moving party must dem-

onstrate a fair chance of success on the merits, or questions

serious enough to require litigation.” Guzman v. Shewry, 552

F.3d 941, 948 (9th Cir. 2009).

The State did not challenge below that Pimentel and other

class members are likely to suffer irreparable harm, and does

not now seem to seriously challenge the district court’s find-

ings that the balance of hardships and the public interest

weigh in the class’s favor. The main issue on appeal, then, is

whether Pimentel is likely to succeed on the merits of her

equal protection and due process claims. We conclude that the

district court, in assessing the likelihood of success and ruling

in Pimentel’s favor, abused its discretion by finding that the

termination of FAP resulted in an equal protection or due pro-

cess violation. Because no equal protection or due process

violation has been alleged, Pimentel’s claim does not invite

PIMENTEL v. DREYFUS 2219

even rational basis, much less strict, scrutiny. Hence, Pimentel

will not succeed on the merits.

I. Equal Protection Claim

In evaluating the likelihood of success of Pimentel’s equal

protection claim, the district court held that Pimentel had

established an equal protection violation, and applied strict

scrutiny to Washington’s termination of FAP. The district

court’s equal protection analysis “focused on whether DSHS

had a compelling interest in deciding to eliminate a state-

administered program serving the relevant sub-class of legal

immigrants while continuing to administer a program serving

U.S. citizens and other legal immigrants.” The district court

explained that, because “Congress did not enact a uniform

rule for states to follow when administering or terminating a

state-funded food assistance program,” strict scrutiny applied

to DSHS’s elimination of FAP.10 In fact, strict scrutiny was

not merited in these circumstances because Pimentel has not

pointed to similarly situated individuals who have been

treated differently by the State. As there can be no equal pro-

tection violation without discrimination, Pimentel will not

succeed on the merits.

In the absence of an equal protection claim, consideration

of the level of scrutiny, whether strict or rational, necessarily

falls out of the analysis. To state an equal protection claim of

any stripe, whatever the level of scrutiny it invites, a plaintiff

must show that the defendant treated the plaintiff differently

10

State discrimination against aliens is typically subject to strict scru-

tiny, see Graham v. Richardson, 403 U.S. 354 (1971), while federal dis-

crimination is subject to rational basis review, see Mathews v. Diaz, 426

U.S. 67 (1976). However, under the uniform-rule doctrine, state discrimi-

nation is subject to only rational basis review when a state’s action merely

implements a uniform federal rule which discriminates on the basis of

alienage. See Plyler v. Doe, 457 U.S. 202, 219 n.19 (1982). In light of our

holding with respect to the absence of discrimination, we do not address

the district court’s uniform rule analysis.

2220 PIMENTEL v. DREYFUS

from similarly situated individuals. Aleman v. Glickman, 217

F.3d 1191, 1195 (9th Cir. 2000). Only once this threshold

showing is made may a court proceed to inquire whether the

basis of the discrimination merits strict scrutiny. To the extent

that Basic Food benefits remain available to citizens and other

aliens, these are federally funded and federally directed bene-

fits with no bearing on how the state chooses to distribute its

own funds.11 Since the recipients under the different programs

are therefore not similarly situated, Pimentel may not com-

pare former FAP recipients to current SNAP recipients to

allege an equal protection violation.

[1] FAP provides benefits exclusively to federally ineligi-

ble legal immigrants, while denying such benefits to citizens

and federally eligible qualified aliens. Perhaps Washington’s

enactment of FAP may have merited strict scrutiny by treating

persons differently on the basis of alienage, since it was

accompanied by no similar state program for citizens. Cf.

Adarand Constructors v. Pena, 515 U.S. 200, 227 (1995)

(rejecting the notion of “benign classifications” and applying

strict scrutiny to all racial classifications irrespective of the

race of the burdened or benefitted group). But while strict

scrutiny may apply when a state adopts such measures favor-

ing a subclass of aliens over citizens and other aliens, when

the state subsequently repeals those measures, it does not nec-

essarily engage in discrimination. Cf. Washington v. Seattle

Sch. Dist. No. 1, 458 U.S. 457, 483 (1982) (“To be sure, ‘the

simple repeal or modification of desegregation or

antidiscrimination laws, without more, never has been viewed

as embodying a presumptively invalid racial classification.’ ”

(quoting Crawford v. Los Angeles Bd. of Educ., 458 U.S. 527,

539 (1982))). When Washington terminated FAP, the state

denied the plaintiff class benefits that it did not and still does

11

The sole defendant in this case is Susan Dreyfus, in her official capac-

ity as Secretary of the Washington State Department of Social and Health

Services. There are no federal defendants.

PIMENTEL v. DREYFUS 2221

not grant to citizens and other aliens.12 Thus, the difficulty

with Pimentel’s claim is that she offers no similarly situated

individuals as a foundation for her equal protection claim.

[2] Of course, Washington could not evade strict scrutiny

simply by first authorizing one state-funded program for citi-

zens and certain aliens and another for a subclass of aliens,

and then canceling the latter. But it did not do so here.

Although the district court found that DSHS effectively oper-

ated SNAP and FAP benefits under one unified “Washington

Basic Food Benefits” program, and therefore compared the

State’s treatment of FAP recipients to that of SNAP recipients

to infer invidious discrimination, the comparison was faulty.

The appearance of a single program does not overcome this

fact: the two programs are, in reality, two separately adminis-

tered programs funded by two distinct sovereigns. Though

Washington is tasked with operating SNAP for its residents,

the U.S. Secretary of Agriculture is ultimately charged with

12

In this critical respect, the present case is materially distinguishable

from Aliessa ex rel. Favad v. Novello, 754 N.E.2d 1085, 1098 (N.Y.

2001), on which Pimentel wrongly relies. There, the New York Court of

Appeals applied strict scrutiny to the state’s post-PRWORA decision to

impose a five-year residency requirement for qualified aliens seeking

state-funded and state-administered Medicaid benefits. See Aliessa, 754

N.E.2d at 1089-90 & n.3. Previously, New York had provided such bene-

fits, independent of its participation in the federally subsidized Medicaid

program, to needy recipients without distinguishing between citizens and

legal aliens. See id. at 1091-92. Thus, the dispute in Aliessa arose not from

the termination of a state program benefitting aliens or a subclass of aliens

exclusively, but rather from denial of state-funded benefits to a subclass

of aliens while continuing to provide those benefits to citizens and other

qualified aliens. Pimentel also relies on Ehrlich v. Perez, a case which

does mirror the present facts in that it too dealt with the state’s elimination

of a state-funded program exclusively benefitting federally ineligible

aliens. 908 A.2d 1220 (Md. 2006). But the Maryland Court of Appeals,

in borrowing considerably from Aliessa and applying strict scrutiny,

ignored the key distinction between the facts it was presented with and

those present in Aliessa—termination of an exclusive benefit program ver-

sus exclusion from a broad-based benefit program—thus rendering its

analysis and conclusion unpersuasive.

2222 PIMENTEL v. DREYFUS

administering the program, including establishing eligibility

criteria and setting the formulae for calculation of benefits. A

careful consideration of the contours of the SNAP program,

including the statutory scheme, source of funding, extent of

state involvement, and history, demonstrates that SNAP is a

federal program which the state merely assists in administer-

ing, rather than a state program which receives federal assis-

tance, and that its beneficiaries are differently situated from,

and cannot be compared to, Pimentel.13

[3] The statutory scheme establishes that the SNAP pro-

gram is federal. The statute declares that “raising levels of

nutrition among low-income households” is a “policy of Con-

gress.” (emphasis added). 7 U.S.C. § 2011. The “increased

utilization of food . . . will strengthen the Nation’s agricultural

economy.” Id. The program applies not just to states, but to

Indian reservations, id. at § 2013(b), and is balanced against

other federal goals and policies. Id. at § 2020(c). The opera-

tion of the program also remains firmly in the hands of the

federal government. It is the “Secretary [who] is authorized to

formulate and administer [SNAP],” rather than states. Id. at

13

Another case upon which Pimentel relies in calling for strict scrutiny

is Finch v. Commonwealth Health Ins. Connector Auth., 946 N.E.2d 1262,

1262 (2011). In Finch, the Supreme Judicial Court held unconstitutional

Massachusetts’s exclusion of certain aliens from the state’s Medicaid pro-

gram, Commonwealth Care. Although the state initially permitted all resi-

dents to enroll in Commonwealth Care, it later changed the eligibility

requirements to mirror the federal PRWORA classifications and estab-

lished a separate program to provide slightly different coverage to feder-

ally ineligible aliens. See id. at 1267-68. But the Finch court carefully

tethered its analysis to the particular statutory design of Commonwealth

Care—a single program distributing a single benefit to eligible individu-

als, with the federal government reimbursing Massachusetts for those

recipients eligible for federal Medicaid. Here, we have not a single, uni-

fied program but two distinct ones. Additionally, while the Welfare

Reform Act entrusts states with some degree of discretion in administering

“designated Federal programs” like Medicaid, it leaves absolutely no dis-

cretion for “specified Federal programs” like Food Stamps. See 8 U.S.C.

§ 1612(a), (b).

PIMENTEL v. DREYFUS 2223

§ 2013(a). States, in carrying out congressional policy, must

submit plans to the Secretary, obtain his approval, and suffer

penalties for violations. Id. at § 2016(i). The areas in which

states are afforded discretion, with the exception of creating

an aliens-only program, are few and limited. See, e.g., id. at

§ 2020(p) (immigration verification); id. at § 2020(s)(3)

(inter-program information).

Nor does the state seek to claim the SNAP program as its

own. Pimentel points to no statement of policy by the state of

Washington comparable to Congress’s statement of goals

with respect to SNAP.

[4] Finally, although it is correct, as Pimentel emphasizes,

that under 7 U.S.C. § 2025, states provide fifty percent of the

administrative costs to the SNAP program, this still does not

render Washington State anything more than an arm of the

U.S. Department of Agriculture, distributing SNAP benefits

under a federal program. These cost-sharing provisions do not

necessarily indicate that Congress believes that the program

furthers state goals. Rather, the statutory scheme demonstrates

that the cost-sharing framework is meant to create an incen-

tive to ensure efficient administration of the program—a fed-

eral purpose. Under the statute, efficient administration is

rewarded, and inefficient administration penalized. With this

statutory structure, an analysis of the history of the program

is irrelevant: we nonetheless note that Washington has been

part of the federal program since its inception, and appears to

have relinquished food stamp assistance to its citizens as a

state policy goal. The program is therefore grounded in fed-

eral law and policy and cannot be compared to, or treated as,

a state program.

[5] Because Pimentel points to no citizens or aliens in

Washington currently receiving FAP-like, state-funded food

assistance benefits, the termination of FAP does not constitute

discrimination, much less alienage-based discrimination, and

therefore should not have been subjected to strict scrutiny. See

2224 PIMENTEL v. DREYFUS

Hong Pham v. Starkowski, 16 A.3d 635, 648 (Conn. 2011)

(“The relevant question in determining if state action discrim-

inates on the basis of alienage” is whether the action “pro-

vides a benefit to citizens that it does not provide to some or

all aliens because of their status as noncitizens.”); Khrapun-

skiy v. Doar, 909 N.E.2d 70, 77 (N.Y. 2009) (finding no equal

protection violation in New York’s elimination of a state-

funded supplemental security income program for federally

ineligible aliens because “there are no state residents receiv-

ing public assistance from New York at the level requested by

plaintiffs”).

In buttressing her equal protection claim, Pimentel suggests

that Washington’s continued and voluntary participation in

SNAP should weigh in favor of finding its termination of FAP

unconstitutional. This argument rests on at least one of two

presumptions: (1) that every state is required to provide feder-

ally ineligible aliens with state benefits as a constitutional

condition of participating in SNAP; or (2) that those states

that do go beyond SNAP by providing such aliens with state

benefits somehow engage in unconstitutional discrimination if

they ever seek to return to administering only SNAP benefits.

[6] Had Washington never adopted the optional FAP pro-

gram, an earlier case of ours, Sudomir v. McMahon, 767 F.2d

1456 (9th Cir. 1985), dictates that Pimentel would have no

equal protection claim arising from Washington’s failure to

provide class members benefits. Id. at 1465-66. Though the

Welfare Reform Act did not establish a uniform rule with

respect to state welfare programs, it did with respect to feder-

ally funded SNAP by imposing mandatory eligibility require-

ments on participating states. Washington, therefore, is not

constitutionally obligated to adopt a more permissive eligibil-

ity standard than what is required under the uniform federal

rule. See id.; see also Hong Pham, 16 A.3d at 646 (“[T]he

equal protection clause does not require the states to ‘fill the

gap’ in coverage for the class members that the federal gov-

ernment had created under the Welfare Reform Act.”);

PIMENTEL v. DREYFUS 2225

Khrapunskiy, 909 N.E.2d at 77 (“[T]he right to equal protec-

tion does not require the State to create a new public assis-

tance program in order to guarantee equal outcomes under

wholly separate and distinct public benefit programs.”).

No more convincing is the contention that states like Wash-

ington that adopt their own state-funded programs exclusively

for the benefit of SNAP-ineligible aliens thereby voluntarily

relinquish the shield otherwise available to states that never

establish such programs. Not only does that view lack a legal

basis,14 following it would create a powerful deterrent to

states’ adoption of voluntary benefits programs assisting fed-

erally ineligible aliens. States would be faced with a choice

between, on the one hand, not providing those aliens with

supplemental state benefits without legal penalties, or on the

other, providing the supplemental benefits and thereafter lock-

ing themselves into providing benefits equivalent to those

provided under SNAP. The Equal Protection Clause does not

force states to choose between only those two relatively

unpalatable options. Instead, states constitutionally can do

precisely what Washington did here: provide supplemental

benefits when the state’s coffers bulge, but eliminate them

when the state’s resources diminish.

14

The Connecticut Supreme Court explains why applying strict scrutiny

in such contexts is illogical:

Under such an argument, if any state established a program to

benefit only aliens, any attempt to eliminate or reduce the benefit

provided only to aliens under that program would be subject to

strict scrutiny review simply because such action necessarily will

harm only aliens, regardless of how aliens are treated as com-

pared to citizens. To require strict scrutiny review for any reduc-

tion of a statutory benefit conferred on aliens alone simply

because only aliens are harmed by the reduction would essen-

tially equate that benefit with a fundamental constitutional right,

the infringement of which would be subject to strict scrutiny

review.

Hong Pham, 16 A.3d at 649 n.23.

2226 PIMENTEL v. DREYFUS

[7] Because Pimentel fails even to allege that the State has

treated her less favorably than a similarly situated citizen of

the State, her claim of alienage discrimination will fail on the

merits.

II. Due Process Claim

Pimentel next asserts a procedural due process claim, argu-

ing that inadequate notice accompanied her termination of

food benefits. As a threshold matter, it is unclear what prop-

erty interest Pimentel alleges as the foundation for her proce-

dural due process claim. Pimentel refers to her property

interest under varying monikers, first emphasizing the lack of

“notice denying SNAP,” but then, based on the district court’s

ruling, characterizing FAP and SNAP benefits as a single pro-

gram, which offered terminated recipients insufficient proce-

dure.

Notwithstanding Pimentel’s apparent conflation of the pro-

grams, we follow state law in treating SNAP and FAP bene-

fits as two separate, distinct property interests. See Town of

Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005) (Property

“entitlements are, ‘. . . not created by the Constitution. Rather,

they are created and their dimensions are defined by existing

rules or understandings that stem from an independent source

such as state law.’ ” (quoting Board of Regents of State Col-

leges v. Roth, 408 U.S. 564, 577 (1972))). Because Pimentel

fails to establish a property interest with respect to either FAP

or SNAP, her due process claim will not succeed on the mer-

its.

[8] Pimentel does not claim, nor could she, that individual-

ized notice requirements must accompany the termination of

her FAP benefits, since those benefits no longer exist in the

state of Washington. In Atkins v. Parker, the Supreme Court

drew a clear line “between an individual adverse action and

a mass change” in food benefit entitlements. 472 U.S. 115,

126 (1985). Consistent with previous teachings that the “di-

PIMENTEL v. DREYFUS 2227

mensions” of the property interest “are defined by . . . law,”

Roth, 408 U.S. at 577, the Court explained in Atkins that “the

existing property entitlement did not qualify the legislature’s

power to substitute a different, less valuable entitlement at a

later date.” 472 U.S. at 129. Pimentel’s loss of FAP benefits

is “the direct consequence of the statutory amendment . . . that

[creates] a different, less valuable property interest after the

amendment became effective.” Id. at 130. FAP no longer

exists as a state-defined property interest to which Pimentel

may lay claim.

[9] Next, even though Pimentel criticizes the notice

requirements that accompanied SNAP benefit denials, she

concedes that she herself is ineligible for SNAP benefits.

Thus, although the allegedly deficient notice may affect the

benefit determinations for other individuals who are poten-

tially SNAP recipients, the deficiency has no bearing on

Pimentel’s eligibility for food benefits. We agree with the

State that Pimentel lacks the concrete and particularized inter-

est required for standing to claim a procedural due process

violation with respect to SNAP benefits. Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560-61 (1992). Further, if Pimentel,

the sole named plaintiff, lacks standing, the class lacks stand-

ing as well. Cornett v. Donovan, 51 F.3d 894, 897 n.2 (9th

Cir. 1995). Even if we were to consider Pimentel’s SNAP due

process claim on the merits, Pimentel’s admission that she is

ineligible for SNAP is fatal: because “the plaintiff[ ] do[es]

not explain how the [law] deprived [her] of that interest,” her

procedural due process claim must fail. Johnson v. Rancho

Santiago Cmty. College Dist., 623 F.3d 1011, 1030 (9th Cir.

2010).15

15

Pimentel also claims that the loss of her child’s food assistance affects

her since she will have to bear the cost of purchasing food previously pur-

chased using the food benefits. However, this indirect injury was not

alleged in either her complaint or supplemental complaint, nor was it the

basis of class certification. Hence, we decline to consider the claim on

appeal.

2228 PIMENTEL v. DREYFUS

CONCLUSION

Pimentel either lacks standing or will not succeed on the

merits of her claims.16 Although the other Winter factors may

tip in her favor and in fact remain unchallenged, “at an irre-

ducible minimum the moving party must demonstrate a fair

chance of success on the merits, or questions serious enough

to require litigation.” Guzman, 552 F.3d at 948 (citations

omitted); see also Doe v. Reed, 586 F.3d 671, 676 (9th Cir.

2009), aff’d 130 S. Ct. 2811 (2010) (vacatur of preliminary

injunction appropriate after plaintiff failed to establish likeli-

hood of success on the merits).

[10] We therefore REVERSE the district court’s order

granting the motion for a preliminary injunction, VACATE

the injunction, and REMAND for further proceedings consis-

tent with this opinion.

16

We also note that vacatur with respect to the entire class is appropri-

ate. In the standing context, we have explained that as class certification

is premised on Pimentel’s typicality as a member of the class, a class rep-

resentative’s want of standing is attributed to the entire class. Cornett, 51

F.3d at 897 n.2. So too with merits and related determinations, the fortunes

of the class rise and fall with those of Pimentel.