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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

ALECHEA TONEY-DICK, individually and on behalf of all others similarly situated,
Plaintiffs,
-against-
ROBERT DOAR, in his official capacity as Commissioner of the New York City Human Resources Administration, and THE NEW YORK CITY HUMAN RIGHTS RESOURCES ADMINISTRATION,
Defendants.

CLASS ACTION COMPLAINT; INJUNCTIVE AND DECLARATORY RELIEF

PRELIMINARY STATEMENT I. Plaintiff Alechea Toney-Dick, bring this class action for declaratory and injunctive relief under Title II of the Americans with Disabilities Act ("ADA"), Section 504 of the Rehabilitation Act of 1973, the Food Stamp Act, and New York State and City statutes and regulations that bar disability-based discrimination in public benefits programs operated by Defendants. 2. This action involves allegations of discrimination on the basis of disability against Defendants Robert Doar, as Commissioner of the New York City Human Resources Administration ("HRA"), and the New York City Human Resources Administration (collectively, "Defendants"); and arises out of the implementation and administration of the Disaster Supplemental Nutrition Assistance Program ("D-SNAP") by HRA in response to Hurricane Sandy in New York City. See HRA Policy Directive #12-32-ELI, "Disaster Supplemental Nutrition Assistance Program" (hereinafter referred to as "PD #12-32-ELI").

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3. D-SNAP is a public benefits program that provides temporary food assistance benefits to eligible individuals affected by a disaster in the form of one-time issuance of SNAP/Food Stamp benefits to assist in paying for a month's worth offood.
4. The D-SNAP benefit levels are fixed amounts based on household size: a family of three, for example, will receive $526 if eligible; a single person will receive $200.
5. In order to address economic losses associated with a disaster, the D-SNAP program's eligibility guidelines are designed to assist a far broader portion ofthe public than the regular SNAP program, with higher income eligibility guidelines, the use of net, as opposed to gross income, deductions for disaster-related expenses, and the waiving of restrictions that bar many immigrants and students from participating in the regular SNAP program.
6. Individuals currently receiving SNAP program benefits are not eligible to apply for the D-SNAP program, but are provided a supplement to their regular monthly SNAP benefit
7. At the federal level the D-SNAP program is administered by the Food and Nutrition Service (FNS), a division within the United States Department of Agriculture (USDA).
8. Upon information and belief, in New York State, an application for aD-SNAP program is made by the State Office of Temporary and Disability Assistance (OTDA) to the federal government only when a local social services district, i.e. a county agency, or, in New York City, a city agency such as Defendant HRA, expresses an interest in applying for the program.
9. On November 28, 2012, OTDA submitted a request on behalf ofHRA and was approved by USDA to operate and administer D-SNAP for those eligible individuals affected by Hurricane Sandy in New York City to those eligible individuals residing in twelve (12) zip codes in Queens, Brooklyn, Manhattan and Staten Island. See PD #12-32-ELI.
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10. The HRA D-SNAP program requires that anyone interested in applying for the program appear in person, unless that person can secure an authorized representative to apply in person as a sun'ogate; the representative must attest to the truth of each statement made on the application under penalties of perjury.
11. Under the current HRA D-SNAP program, D-SNAP applications are to be accepted for the period from December 12, 2012 to December 18, 2012.
12. HRA has designated only one location - in Fort Greene, Brooklyn - at which applications for D-SNAP are to be accepted for seven days; a second, satellite site, in Staten Island, accepts applications only part time for four days. See PD #12-32-ELI.
13. The submission made to the FNS to operate the D-SNAP program did not make any mention of accommodations designed to specifically address the needs of individuals with disabilities.
14. In the regular SNAP program, individuals have the opportunity to apply in-person for SNAP benefits at one of more than twenty HRA offices, and through a network of community based organizations.
15. In the regular SNAP program, individuals with disabilities may also apply for benefits via online or through the mail.
16. By severely limiting the number of physical application sites, and failing to provide the types of accommodations that are available to persons with disabilities seeking to apply for SNAP benefits, HRA's D-SNAP program fails to provide reasonable accommodations to individuals with disabilities who wish to apply for the program, thereby denying many of them access to much-needed benefits.
17. Plaintiff, on behalf ofpersons with disabilities who are eligible to apply for D3

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SNAP, bring this class action challenging the Defendants' failure to consider, plan for and address the needs of persons with disabilities by subjecting them to an inflexible in-person application requirement under HRA's D-SNAP program.
18. Plaintiff seek a preliminary and permanent injunction requiring Defendants to: (a) accommodate all class members by allowing them alternatives to the in-person requirement, including but not limited to telephone, mail, internet, facsimile or authorized representatives who are not themselves required to attest to the truth of an applicationl and when these methods are not viable, home visits; and (b) extend the D-SNAP application period so that all class members may have an equivalent period of time to apply for D-SNAP once reasonable accommodations are implemented or, in the alternative, allow all class members the opportunity to apply and obtain D-SNAP benefits retroactively; and (c) consider the needs ofpersons with disabilities in planning any future D-SNAP programs and provide reasonable accommodations in the application processes that may be required in such programs..
JURISDICTION 19. This Court has subject matter jurisdiction over this action under 28 U.S.c. §§ 1331 and 1343(a)(3) and (4). The action arises under the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.c. § 794 et seq., and the Food Stamp Act, 7 U.S.C. § 2020. 20. This Court has supplemental jurisdiction under 28 U.S.C. § 1367 over plaintiffs claims under the New York State and local laws prohibiting disability discrimination.
1 Although authorized representatives are allowed for the in-person requirement under D-SNAP for those who are not current recipients of SNAP and reside in the covered zip codes, the authorized representative must be designated in writing by an adult member of the applying household, and must be very knowledgeable about the applicant household's circumstances. The authorized representatives must also certify that the information in the application is both complete and accurate and, if inaccurate, can face criminal prosecution and/or disqualification of benefits. Therefore, Plaintiff and class members are not able to get authorized representatives to apply on their behalf See PD #12-32-ELI.
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21. Venne properly lies in this district pursuant to 28 U.S.C. § 1391(b). PARTIES
Plaintiff 22. Plaintiff ALECHEA TONEY-DICK lives in Arverne in the Far Rockaway section
of Queens, zip code 11692, with her husband, who works full-time, and her 14-year-old son. She suffers from disabilities within the meaning the ADA and uses a wheelchair due to her impairments. She is not a current recipient of SNAP benefits, but she would like to apply for DSNAP benefits. Plaintiff Toney-Dick believes that she is likely eligible for $526 in D-SNAP benefits. However, due to her disabilities, she cannot travel to the closest D-SNAP application site, which is more than 90 minutes away from her home by public transportation to apply for the program. Defendants
23. Defendant ROBERT DOAR is the Commissioner ofHRA, the executive agency for the City of New York responsible for administering SNAP for New York City residents and complying with federal and state laws and regulations relating to SNAP benefits.
24. Defendant NEW YORK CITY HUMAN RESOURCES ADMINSTRATION is the executive agency responsible for the administration of the D-SNAP program in New York City.
CLASS ACTION ALLEGATIONS 25. Plaintiff brings this action pursuant to Rule 23(a) and 23(b)(l) and Rule 23(b)(2) of the Federal Rules of Civil Procedure on their own behalf and on behalf of all others similarly situated. 26. Plaintiffs class consists of all individuals in New York City who (a) have a
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physical or mental impainnent that substantially limits one or more major life activities within the meaning of the ADA, have a record of such an impainnent, or are regarded as having such an impainnent; (b) are not current recipients of SNAP benefits and (c) reside in the covered zip codes for HRA's D-SNAP program; and (d) need reasonable accommodations to assist them in applying for D-SNAP benefits.
27. The class is so numerous that joinder of all members is impracticable. 28. Defendant HRA estimates that there may be up to 30,000 new applicants for DSNAP. 29. Upon information and belief, based in part on general nationwide prevalence data among adults available from the Center for Disease Control and the New York State Department of Health, it is extremely likely that more than one percent of the individuals in the anticipated D-SNAP eligible applicant pool are persons with disabilities as that tenn is defined in the Americans with Disabilities Act, who are either homebound or whose physical or mental impairments are such that they need some fonn of accommodation in the D-SNAP application process. 30. The rules, policies, procedures, and methods of administration that HRA is using in the D-SNAP program and that fonn the factual basis for this complaint are common to all members of the class. The relief sought will apply to all of them. 31. Questions of law common to the members of the class include whether defendants, individually or collectively, violated the ADA, Section 504 of the Rehabilitation Act of 1973, the Food Stamp Act, and New York State and City statutes and regulations, by failing to provide reasonable accommodations to those new applicants with disabilities who are subject to the in-person requirement ofD-SNAP.
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32. The claims of the plaintiff are typical of the claims of the entire class. Defendants' violation of the laws as alleged herein has deprived plaintiff and members of the class to be deprived of the opportunity to apply for D-SNAP benefits. Therefore, all class members will suffer the same or similar injuries for the purposes of the injunctive and declaratory relief sought.
33. The named plaintiff is capable offairly and adequately representing the class and protecting its interests. Counsel for the plaintiff, the Legal Aid Society, is a legal services organization with substantial experience in class action litigation on behalf of persons with disabilities and persons eligible for public assistance. Counsel is aware of no conflicts among members of the proposed plaintiff class.
34. The prosecution of separate actions by individual members of the class would create a risk of inconsistent and varying adjudications that would establish incompatible standards of conduct for the defendant.
35. The prosecution of separate actions by individual members ofthe class would also create a risk of adjudications with respect to individual members which would, as a practical matter, substantially impair the ability of other members to protect their interests.
36. Defendants have acted or refused to act on grounds generally applicable to the class, making appropriate injunctive and declaratory relief with respect to the class as a whole.
STATUTORY AND REGULATORY FRAMEWORK 37. The Food Stamp Act establishes the Supplemental Nutrition Assistance Program ("SNAP"), formerly known as the Food Stamp Program, which is a federally-funded program. SNAP is state-supervised and locally-administered in New York State. 38. USDA has the authority to establish D-SNAP pursuant to the Robert T. Stafford
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Disaster Relief and Emergency Assistance Act, Pub. Law No. 93-288, 42 U.S.C. § 5179, and the Food Stamp Act and accompanying regulations, 7 U.S.C. § 2014(h), 7 C.F.R. § 280.
39. D-SNAP is a public benefits program that provides one month offood assistance benefits to eligible individuals affected by a natural disaster. To be eligible for D-SNAP, a household must live in the identified disaster area, have been affected by the disaster, and meet certain D-SNAP eligibility criteria.
40. In New York, in order to implement D-SNAP, HRA must make a request to OTDA setting forth a plan to operate a D-SNAP program; OTDA submits the plan for approval by the Food and Nutrition Service (FNS), a division of the USDA. Once approved, HRA administers the program.
41. On October 30, 2012, President Obama declared New York a major disaster area due to Hurricane Sandy.
42. New York City officials have estimated that Hurricane Sandy inflicted nearly $20 billion in economic damages to city residents, businesses, and local govemment agencies.
43. On December 7,2012, HRA announced that New York City was approved for DSNAP in response to Hurricane Sandy, and that an HRA D-SNAP program would begin in just five (5) days, and run for a total of seven days from December 12 -18, 2012.
44. Eligibility for the HRA D-SNAP program has been limited to residents of ten (10) complete zip codes located in the Coney Island (11224 and 11235) and Red Hook (11231) areas in the Brooklyn; in the Far Rockaway area of Queens (11691,11693,11694, and 1167), the southeastem shore of the Staten Island (l0306) and in lower Manhattan (10002) and two partial zip codes: 1229 in Coney Island and 10305 in Staten Island. See PD #12-32-ELI.
45. HRA's D-SNAP program requires, inter alia, that individuals who are not current 8

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recipients of SNAP benefits who reside in the zip codes covered by D-SNAP apply for D-SNAP benefits in person during the limited seven day application period from December 12-18, 2012. See PD #12-32-ELI.
46. There is only one main site available for persons to apply for the D-SNAP program, an office located in Fort Greene, Brooklyn. A satellite site in Staten Island at a high school is open on a part-time basis from December 14 to 17. See PD #12-32-ELI
47. Thousands of individuals who are eligible to apply for D-SNAP reside outside of Brooklyn and Staten Island, particularly in Far Rockaway. See PD #12-32-ELI.
48. By way of contrast, in the D-SNAP program administered in New Jersey for victims of Hurricane Sandy, there were over 70 application sites, with some individual boroughs having seven-ten sites, utilizing senior centers, libraries, firehouses, shelters, social services offices and outreach sites.
49. In neighboring Westchester County, D-SNAP program applications were accepted at five different sites.
50. Defendants' administration of the D-SNAP program violates the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq., Section 504 ofthe Rehabilitation Act of 1973,29 U.S.C. § 794 et seq., the Food Stamp Act, 7 U.S.C. § 2020, and New York State and City Human Rights law, and New York State Social Services Law § 331, as it fails to accommodate those with disabilities who are required to apply for D-SNAP in person at the D-SNAP application sites.
FACTUAL ALLEGATIONS COMMON TO THE PLAINTIFF CLASS 51. Defendants have failed to consider and address the different needs of individuals with disabilities in pImming, advertising, implementing and administering the D-SNAP program.
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52. Defendants have not made any reasonable accommodations for those individuals with disabilities, including "homebound" clients, to apply for D-SNAP where they reside in the covered zip codes and are not current recipients of SNAP, in violation of federal, state, and city laws.
53. Upon information and beliefHRA did not consult with any community-based organizations familiar with the needs of people with disabilities in fonnulating plans for the DSNAP program it was seeking to implement.
54. In the regular SNAP program operated by the Defendants, individuals with disabilities interested in applying for the program are accommodated by an application process that utilizes telephones, faxes, online submissions, mail and home visits where necessary to apply for and access SNAP benefits.
55. None of these accommodations provided for in the regular SNAP program, - the use of telephones, faxes, online submissions, mail and home visits where necessary to facilitate applications - have been made incorporated in HRA's D-SNAP program to make the application process and program benefits accessible to individuals with disabilities.
56. Based on their experience with the regular SNAP program, the available demographic data and information with respect to the extent to which individuals are currently receiving or eligible for home visits from the agency, home care health services, and services from Adult Protective Services (APS) and HIVIAIDS Services Administration (HASA) due to the severity of their disabilities, Defendants knew, or should have known, that the plan that was submitted for HRA's D-SNAP program would not meet the needs of many otherwise eligible individuals.
57. As a result ofHRA's failure to address the specific needs of individuals with 10

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disabilities in planning the D-SNAP program, including the decision as to where applications would be accepted, individuals with disabilities in New York City who are in need of and eligible for D-SNAP benefits are discriminated against and deprived of the opportunity to access such benefits.
58. Reasonable modifications in defendants' policies, practices, procedures, and methods of administration are necessary to enable plaintiff and class members to apply for and obtain D-SNAP benefits.
59. Reasonable modifications in the defendant's policies, practices, and procedures are necessary to afford plaintiff and class members an opportunity to apply for and obtain DSNAP benefits on terms equal to and as effective as those enjoyed by non-disabled persons.
60. Defendants have failed to consider the rights of qualified individuals with disabilities, their rights to receive benefits and services pursuant to the ADA, and how to provide reasonable accommodations to such individuals under D-SNAP.
61. Defendants do not have effective procedures in place to accept and act upon requests for reasonable accommodations and to ensure that any accommodations made as a result of such requests are carried out under D-SNAP.
62. HRA does not have systems in place to accommodate a travel hardship for those that have difficulty or are unable to travel to the D-SNAP application sites.
63. Travel times by public transportation to these D-SNAP application sites range from approximately half-an hour to almost one hour and a half, depending on where the individual resides in the covered zip codes; for those in the borough of Queens, the travel time always exceeds one hour. For those that need wheelchair accessibility, the travel times are even longer.
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64. Furthermore, individuals with disabilities who have travel limitations experience greater pain and discomfort and longer time traveling to the D-SNAP application sites.
65. In order to apply for the HRA D-SNAP program through an authorized representative, an individual with a disability must be willing to disclose very personal and sensitive infonnation including items such as: a social security number, detailed financial information including any income from any source as well as bank account infonuation, mortgages, liquid assets and very personal expenses, and provide documentation for the same to the authorized representative.
66. Upon infonnation and belief, many individuals with disabilities, including but not limited to individuals who suffer from psychiatric disabilities and individuals who have legitimate concems about identity theft and the loss or mishandling of very sensitive and personal infonuation, are extremely reluctant to provide such personal infonuation to third parties.
67. An individual agreeing to serve as an authorized representative for a person with a disability has to be willing to attest to the truth of all statements made in an application under penalty of perjury and, during the application process, may be asked to answer specific questions about documentation or the lack thereof for any claimed expense or other item in the application.
68. Upon infonnation and belief many individuals with disabilities residing in the twelve covered zip codes have not even heard about the D-SNAP program, or learned about it only recently.
69. Many individuals also have not had time to secure an authorized representative, assuming they were willing to apply though such a person.
70. Upon infonuation and belief many individuals with disabilities live in relative 12

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isolation, or have physical or mental impairments that limit their ability to communicate with and/or interact with others, such that they have not had an opportunity to find -- in a matter of approximately one week - a person willing to give up a considerable part of a day and to undertake the responsibilities associated with the position of being authorized representative without any compensation,
71. HRA estimates that, on average, each household that is found eligible for its DSNAP program will receive approximately $432,
72, As a result of the cumulative efIect of Defendants' actions and inactions many would-be applicants with disabilities are denied access to much needed emergency benefits through the D-SNAP program to help feed themselves and their families,
73, FNS has, in the past, approved applications to extend, expand or renew aD-SNAP program,
FACTS CONCERNING THE NAMED PLAINTIFF Alechea Toney-Dick
74, Alechea Toney-Dick is a 42-year-old wife and mother, who resides in Arveme in the Far Rockaway area of Queens, with her husband and her 14-year-old son, She is currently not a SNAP recipient
75, Alechea Toney-Dick suffers from multiple physical impainnents, including multiple sclerosis (MS), hyperthyroidism, chronic arthritis, and hip problems, resulting in severe mobility issues and chronic weakness and fatigue, She also suffers from chronic obstructive pulmonary disease (COPD), which makes it very difficult for her to breathe,
76, As a result of her physical conditions, Alechea Toney-Dick uses a wheelchair to move around her horne, If she needs to go out, she is unable to do so unless her husband carries
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her down the stairs. Therefore, she eannot leave her home without assistance. 77. Alechea Toney-Dick's husband works full-time at North Shore LIJ from 4:30
a.m. to approximately4:l5 p.m. every weekday. Her l4-year-old son attends school full-time, but, due to school damage from Hurricane Sandy, is being bussed to another school in Queens.
78. As a result of Hurricane Sandy, Alechea Toney-Dick's home was severely damaged - flooding of the first floor; damage to the stairs leading to the second floor; leaks from the roof and ceilings; damage to the t1oors; cracks to the foundation and windows; personal damage to her computer and personal belongings; and loss of food.
79. She and her family also had to pay out-of-pocket to stay three nights at a hotel, because they did not have electricity, heat or hot water in the home. Although they are living back in the house, they still do not have heat or hot water.
80. Additional food assistance would benefit her and her family greatly as they have had to spend money for out-of-pocket for expenses incuned from the disaster.
81. Alechea Toney-Dick is eligible to apply for D-SNAP; however, the closest DSNAP application site is more than an hour-and-a half away by public transportation. Furthennore, due to her disabilities, she is unable to travel to the site and does not have anyone that can apply on her behalf. Her husband works full-time and it is difficult for him to get off from work.
82. Due to Alechea Toney-Dick's disabilities, she requires appropriate reasonable modifications to apply for and access HRA's D-SNAP program, including applying for the program by mail, fax, or telephone, and have equal access to D-SNAP benefits.
CLAIMS FOR RELIEF 14

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FIRST CLAIM FOR RELIEF VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT, 42 U.S.C. § 12131,
ETSEQ. 83. Title II ofthe ADA, 42 U.S.C. § 12132, prohibits a public entity from excluding a person with a disability from participating in or denying the benefits of a program of the public entity to a person with a disability or otherwise discriminating against a person on the basis of disability. 84. The ADA defines "disability" as a physical or mental impairment that substantially limits one or more of the major life activities of such individual; having a record of such impairn1ent; or being regarded as having such impainnent, as defined under the ADA at 42 U.S.c. § 12102(2) and U.S. Department of Justice ("DOJ") implementing regulations, 28 C.F.R. § 35.104. 85. Each plaintiff and member of the class have at least one "disability," within the meaning of the ADA and implementing regulations. 86. A "public entity" includes state and local governments, their agencies, and their instrumentalities, as defined under the ADA, 42 U.S.C. § 12131(1). Defendants are public entities within the meaning of 42 U.S.C. § 12131(1) and 28 C.F.R. § 35.104. 87. Each plaintiff and member of the class is a "qualified individual with a disability" as defined under the ADA, 42 U.S.C. § 12131 (2) and 28 C.F.R. § 35.104, because each person is an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the paliicipation in programs or activities provided by Defendants.
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88. By failing to plan to meet the unique needs of person with disabilities during a disaster, Defendant discriminated and continues to discriminate against plaintiff and members of the class in violation of 42 U.S.C. §§ 12132 and DOrs implementing regulations, 28 C.F.R. §§ 35.130, in the following ways:
(A) Defendants discriminated and continue to discriminate against plaintiff and members of the class by providing benefits in an unequal manner which denies or limits the ability of disabled person to enjoy the benefits as others can, in violation of28 C.F.R. § 35.130(b)(1).
(B) Defendants discriminated and continue to discriminate against plaintiff and members of the class by selecting sites that have the effect of excluding individuals with disabilities from, denying the benefits of, or otherwise subjecting them to discrimination, in violation of28 C.F.R. §§ 35. 130(b)(4).
(C) Defendants discriminated and continue to discriminate against plaintiff and members of the class by failing to provide reasonable modifications necessary for them to apply for, successfully obtain, and maintain eligibility for benefits, in violation of 42 U.S.C. § 12112(b)(5)(A) and 28 C.F.R. §§ 35. 130(b)(7) & 28 C.F.R. §§ 35.130(b)(4).
89. Defendants' conduct constitutes an ongoing and continuous violation of the ADA and unless restrained to do so, Defendants will continue to violate said law. This conduct, unless enjoined, will continue to inflict injuries for which Plaintiff has no adequate remedy at law. Plaintiff will suffer irreparable harm in that they will continue to be discriminated against and denied access to D-SNAP benefits.
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SECOND CLAIM FOR RELIEF VIOLATION OF SECTION 504 OF THE REHABILITATION ACT OF 1973 (29 U.S.C. §
794, ET SEQ.) 90. Section 504 of the Rehabilitation Act of 1973,29 U.S.C. § 794, and its implementing regulations, prohibits discrimination against persons with disabilities by recipients of federal funding. 91. Defendants are "recipient[s]" of "federal financial assistance," as defined by Section 504 of the Rehabilitation Act of 1973 and by implementing regulations, thereby rendering them subject to Section 504. 29 U.S.C. § 794(b)(1); 28 C.F.R. § 41.3(d)-(e); 45 C.F.R. § 84.3(f)-(h); 7 C.F.R. § 15b.3(f)-(g). 92. Each plaintiff and member of the class has at least one "disability," as that term is used in Section 504 of the Rehabilitation Act. Like the ADA, Section 504 defines a disability as "a physical or mental impairment that substantially limits one or more of major life activities of such individual." 29 U.S.C. § 705(20)(B). 93. Each plaintiff and member of the plaintiff class is a "handicapped person," as that term is regulations implementing Section 504. Section 504 regulations define a handicap as a physical or mental impairment that substantially limits one or more of the major life activities of such individual. 28 C.F.R. § 41.3 I (a); 45 C.F.R. § 84.3(j), (I); 7 C.F. R. § 15b.3(i). 94. Each plaintiff and member of the class meets the essential eligibility requirements for the receipt of services and is therefore a "qualified handicapped person," as that term is defined in regulations implementing Section 504. 28 C.F.R. § 41.32; 45 C.F.R. § 84.3(1); 7 C.F.R. § 15b.3(n)(4). 95. Defendant discriminated and continues to discriminate against plaintiff and
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members of the class in violation of29 U.S.c. § 794(a) and its implementing regulations, 28 C.F.R. § 41.51; 45 C.F.R. § 84.4, 7 C.F.R. § 15b.4, in the following ways:
(A) Defendants discriminated and continues to discriminate against plaintiff and members of the class by failing to provide reasonable modifications necessary for them to apply for, successfully obtain, and maintain eligibility for benefits, in violation of29 U.S.c. § 794(a).
(B) Defendants discriminated and continues to discriminate against plaintiff and members ofthe class by failing to (i) afford them such benefits in a mamler that is equal to others; and (ii) provide them with benefits in a manner that is as effective in affording equal opportunity to obtain the same result, gain the same benefit and reach the same level of achievement as that provided to others, in violation of28 C.F.R. § 41.51 (b)(l)(ii)-(iii); 45 C.F.R. §§ 84.4(b)(2) & 84.4(b)(1)(ii)-(iii); 7 C.F.R. § 15b.4(b)(I )(ii)-(iii).
(C) Defendants discriminated and continues to discriminate against plaintiff and members of the class by denying them access to benefits, in violation of28 C.F.R. §§ 41.51(a) & 4I.SI(b)(1)(i)- (ii), (vii); 45 C.F.R. §§ 84.4(a) & 84.4(b)(1 )(I)-(ii), (vii); 7 C.F.R. §§ lSb.4(a) & 15b.4(b)(1 )(i)-(ii), (vii).
96. Defendants' conduct constitutes an ongoing and continuous violation of Section 504 of the Rehabilitation Act and unless restrained to do so, Defendants will continue to violate said law. This conduct, unless enjoined, will continue to inflict injuries for which Plaintiff has no adequate remedy at law. Plaintiff will suffer ilTeparable harm in that they will continue to be discriminated against and denied access to D-SNAP benefits.
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THIRD CLAIM FOR RELIEF VIOLATION OF THE FOOD STAMP ACT 97. Defendants, acting under color of state law, are responsible for the administration of Food Stamps/SNAP in the State of New York. 98. 7 U.S.C. § 2020(e)(1l) of the Food Stamp Act provides that a state agency, in designating a plan to for SNAP benefits during a disaster, shall establish "application procedures to reduce hardship and inconvenience." 99. 7 U.S.C. § 2020(e)(2)(B)(i) of the Food Stamp Act provides that a state agency "shall establish procedures" that "provide timely, accurate, and fair service to applicants for, and participants in, the food stamp program". 100. Defendants have failed to establish said procedures that reduce hardship and inconvenience or provide fair service to applicants with disabilities interested in applying for DSNAP benefits, which deprives plaintiff and members of the class their rights under the Food Stamp Act, 7 U.S.C. § 2020(e)(2)(B)(i) and (e)(11), actionable under 42 U.S.C. § 1983.
FOURTH CLAIM FOR RELIEF VIOLATIONS OF § 296-2(a) OF THE NEW YORK STATE HUMAN RIGHTS LAW
101. Plaintiff and members of the class are persons with a disability within the meaning of N.Y. Exec. Law § 292(21).
102. Defendants subjected and continue to subject plaintiff and members of the class to discrimination by refusing, withholding from or denying them accommodations, advantages, facilities or privileges because oftheir disabilities, in violation of the State Human Rights Law. N.Y. Exec. Law § 296-2(a), enforceable under N.Y. Exec. Law § 297(9).
FIFTH CLAIM FOR RELIEF 19

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VIOLATIONS OF THE NEW YORK STATE SOCIAL SERVICES LAW § 331 and 18 N.Y.C.R.R. § 303.1(a) and (b)
103. Plaintiff and all plaintiff class members are "handicapped" within the meaning of N.Y. Soc. Servo L. § 331(3) and 18 N.Y.C.R.R. § 303.1(a) and (b).
104. The failure of defendants to provide reasonable modifications necessary for class members to apply for, successfully obtain, and maintain eligibility for D-SNAP benefits, discriminates against class members on the basis of their handicap in violation of their rights under N.Y. Soc. Servo Law § 331 and 18 N'y'C.R.R. § 303.1(a) and (b).
SIXTH CLAIM FOR RELIEF VIOLATIONS OF THE NEW YORK CITY HUMAN RIGHTS LAW 105. Defendants are "persons" subject to N.Y.C. Administrative Code § 8-107(4)(a) in that they are "providers of public accommodation" pursuant to N.Y.C. Administrative Code § 8102(9). 106. Plaintiff and members of the class have a disability within the meaning ofN.Y.C. Administrative Code § 8-102(16). 107. Defendants discriminate against plaintiff in violation ofN.Y.C. Administrative Code § 8-1 07(4)(a) by refusing, withholding from or denying plaintiff accommodations, advantages, facilities or privileges because of their disabilities.
PRAYER FOR RELIEF WHEREFORE, plaintiff request that this Court grant them the following relief: 108. Certify a plaintiff class pursuant to Fed. R. Civ. P. 23(a) and 23(b)(1) and (b)(2). 109. Adjudge and declare that the policies, practices, omissions and conditions described above are in violation of the rights of the plaintiff and the class they seek to represent
20

Case 1:12-cv-09162-KBF Document 1 Filed 12/17/12 Page 21 of 22
under the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, the Food Stamp Act, the New York State and City Human Rights Law, and the New York State Social Services Law and its implementing regulations.
110. Permanently enjoin defendants, their agents, employees and all persons acting in concert with them from discriminating against plaintiff and class members by requiring them to (a) accommodate all class members by allowing them alternatives to the in-person requirement, including but not limited to telephone, mail, internet, faesimile or authorized representatives and when these methods are not viable, home visits; and (b) and extend the D-SNAP application period in the current D-SNAP program so that all class members may have an equivalent period of time to apply for D-SNAP once an application system incorporating reasonable accommodations has been implemented or, in the alternative, allow all class members the opportunity to apply for and obtain D-SNAP benefits retroactively if the HRA D-SNAP program is not extended or renewed to provide assistance to those who suffered losses as a result of Hurricane Sandy.
Ill. Order defendants to refrain from employing methods of administration that have the effect of discriminating against plaintiff and class members based on their disabilities.
112. Order defendants, their agents, employees and all persons acting in concert with them, to make reasonable accommodations available to plaintiff and class members in a manner that allows them to apply for and comply with the conditions of eligibility for D-SNAP in the current HRA D-SNAP program and any future HRA D-SNAP programs.
113. Award plaintiff the costs of this suit and reasonable attorneys' fees and litigation expenses.
114. Retain jurisdiction of this case until the defendant has fully complied with the 21

Case 1:12-cv-09162-KBF Document 1 Filed 12/17/12 Page 22 of 22
orders of this Court, and there is a reasonable assurance that the defendant will continue to comply in the future; and
115. Award such other and further relief as the Court deems just aud proper. Dated: New York, New York
December 17, 2012
Respectfully submitted,
THE LEGAL AID SOCIETY Steve Banks, Attorney-in-Charge Adriene Holder, Attorney-in-Charge, Civil Practice Area Judith Goldiner, Attorney-in-Charge, Civil Law Refornl Unit Kenneth R. Stephens, Supervising Attorney, Civil Law Reform Unit Susan E. Welber, of counsel Katie Kelleher, of counsel Sumani Lanka, of counsel 199 Water Street, 3d Floor New York, New York 10038 Telephone (212) 577-3300
>--;,:;:?
By: _ .~(./// _~._L _.~ __~p__.=...~ -.______________.______
Sumani Lanka
22

 
 Case 1:12-cv-09162-KBF Document 14 Filed 01/08/13 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------------------------------------------X

ALCHEA TONEY-DICK, X.T., RENEE MOORE,

:

and SHERRY HANAN, individually and on behalf of :

all others similarly situated,

:

:

Plaintiffs,

:

:

-against-

:

:

ROBERT DOAR, in his official capacity

:

as Commissioner of the New York City Human

:

Resources Administration and the NEW YORK

CITY HUMAN RESOURCES ADMINISTRATION,

:

Defendants.

:

-----------------------------------------------------------------------X

No. 12 Civ. 9162 (KBF) NOTICE OF MOTION

PLEASE TAKE NOTICE, that, upon (A) the declarations of plaintiffs

ALECHEA TONEY-DICK, sworn to on December 17, 2012, X.T., sworn to on January 7, 2013,

RENEE MOORE, sworn to on January 4, 2013, and SHERRY HANAN, sworn to on January 7,

2013; (B) the declarations of CATHERINE F. BOWMAN, dated January 7, 2013; SUSAN

DOOHA, dated January 5, 2013; JOEL S. BERG, dated January 7, 2013; and RYAN GELMAN,

dated January 7, 2013; (C) the attorney declaration of KENNETH STEPHENS, dated January 7,

2013; (D) the Amended Complaint filed on December 21, 2012; and (E) the accompanying

Memorandum of Law, Plaintiffs will move this Court, before the Honorable Judge Katherine B.

Forrest, at the Daniel Patrick Moynihan United States Courthouse located at 500 Pearl Street,

New York, New York, Room 15A on _______________, 2013, at 9:30 AM, or as soon

thereafter as counsel can be heard, for an Order:

(1) granting preliminary relief pursuant to Federal Rule of Civil Procedure 65,

directing the City Defendants to seek approval from the appropriate federal and state officials,

Case 1:12-cv-09162-KBF Document 14 Filed 01/08/13 Page 2 of 3
such as the New York State Office of Temporary and Disability Assistance, to rectify its violation of the law by providing class members meaningful access through reasonable accommodations, such as (i) several additional satellite locations for applications, (ii) the option to apply online, through mail, by calling, or by faxing, (iii) the option to request home visits to complete applications, and (iv) other reasonable accommodations that are employed in the Supplemental Nutrition Assistance Program, to apply for Disaster Supplemental Nutrition Assistance Program (“D-SNAP”) benefits in the wake of the Hurricane Sandy disaster;
(2) certifying this action pursuant to Federal Rule of Civil Procedure 23 on behalf of a class consisting of all individuals in New York City who (a) have a physical or mental impairment that substantially limits one or more major life activities within the meaning of the Americans with Disabilities Act or have a record of such an impairment, (b) are eligible to apply for D-SNAP benefits, (c) reside in the covered zip codes for the New York City Human Resources Administration’s D-SNAP program; and (d) need reasonable accommodations to enable them to apply for D-SNAP benefits; and
(3) for such other and further relief as the Court deems just and proper. Dated: January 7, 2013
Brooklyn, New York
Respectfully Submitted, /s/ Randy M. Mastro
GIBSON, DUNN & CRUTCHER 200 Park Avenue Randy M. Mastro Justin Solomon Nematzadeh New York, NY 10166-0193 Tel: (212) 351-4000
2

Case 1:12-cv-09162-KBF Document 14 Filed 01/08/13 Page 3 of 3
/s/ Kenneth Stephens Kenneth Stephens Attorney in Charge THE LEGAL AID SOCIETY Adriene Holder Judith Goldiner Kenneth Stephens Sumani Lanka Kathleen Kelleher Susan Welber Susan Sternberg 111 Livingston Street Brooklyn, New York (646) 761-9291 Attorneys for the Plaintiff
3

Case 1:12-cv-09162-KBF Document 14-1 Filed 01/08/13 Page 1 of 2

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-----------------------------------------------------------------------X

ALECHEA TONEY-DICK, X.T., RENEE MOORE,

:

and SHERRY HANAN, individually and on behalf of all :

others similarly situated,

: No. 12 Civ. 9162 (KBF)

:

Plaintiffs,

:

:

-against-

: ORDER

:

ROBERT DOAR, in his official capacity

:

as Commissioner of the New York City Human

:

Resources Administration and THE NEW YORK

:

CITY HUMAN RESOURCES ADMINISTRATION,

:

Defendants.

:

------------------------------------------------------------------------X

This court hereby declares an ORDER:

1. Directing City Defendants to seek approval from the appropriate federal and state

officials, such as the New York State Office of Temporary and Disability Assistance (“OTDA”),

to rectify its violation of the law by providing class members meaningful access through

reasonable accommodations, such as (i) several additional satellite locations for applications, (ii)

the option to apply online, through mail, by calling, or by faxing, (iii) the option to request home

visits to complete applications, and (iv) other reasonable accommodations that are employed in

the Supplemental Nutrition Assistance Program, to apply for Disaster Supplemental Nutrition

Assistance Program (“D-SNAP”) benefits in the wake of the Hurricane Sandy disaster;

2. Certifying a class consisting of all individuals in New York City who (a) have a

physical or mental impairment that substantially limits one or more major life activities within

the meaning of the Americans with Disabilities Act and have a record of such an impairment, (b)

are eligible to apply for D-SNAP benefits, (c) reside in the covered zip codes for the New York

Case 1:12-cv-09162-KBF Document 14-1 Filed 01/08/13 Page 2 of 2 City Human Resources Administration’s D-SNAP program; and (d) need reasonable accommodations to enable them to apply for D-SNAP benefits; and it is further
ORDERED that personal service of a copy of this order and annexed affidavit upon the defendant or his counsel on or before ___________________o'clock in the ________noon, DATED: New York ISSUED: ______________
________________________________________ UNITED STATES DISTRICT JUDGE
2

 
 Case 1:12-cv-09162-KBF Document 38 Filed 03/18/13 Page 1 of 26

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------.---------------------J{
ALECHEA TONEY-DICK, J{.T., RENEE MOORE, SHERRY HANAN, individually and on behalf of all others similarly situated,
Plaintiffs,
-v-
ROBERT DOAR, in his official capacity as Commissioner of the New York City Human Resources Administration, and THE NEW YORK CITY HUMAN RESOURCES ADMINISTRATION,
Defendants.

USDCSDNY DOCUMENT ELECTRONICALLY FILED DOC #:_ _ _ _ _ __
DATE FILED:MAR 1 8 2013
12 Civ. 9162 (KBF) MEMORANDUM DECISION & ORDER

------------------------------------------------------------------- J{ KATHERINE B. FORREST, District Judge:
As Hurricane Sandy swept up the Atlantic seaboard in late October 2012, New Yorkers prepared for a bad storm. Many, however, did not anticipate the level of destruction and devastation Hurricane Sandy would cause throughout the City.
On October 30,2012, President Barack Obama declared New York City (otherwise referred to as "New York" or the "City") a major disaster area due to the impact of Hurricane Sandy. Indeed, not since September 11,2001, had the City or its residents faced such an emergency situation as the hurricane. From the devastation in Breezy Point, to the emergency evacuations at Bellevue Hospital, to flooded train tunnels across the East River, to the crane dangling above 57th street, to the widespread electricity losses and gas shortages-wand all the other affected

1 


Case 1:12-cv-09162-KBF Document 38 Filed 03/18/13 Page 2 of 26
people and property--it was and is long in anyone's memory the last time the City faced such a broad-scale set of emergencies on such an immense geographical scale all at once.
Among the emergency situations listed above, and the countless others-­ omitted not because they were any less devastating to the individuals involved, but because there is only so much space in this document--was the terrible plight of the City's indigent disabled. Indeed, their lives were--if possible--thrown into even more chaos than those of the average New Yorker. This litigation attempts to address some part of the chaos facing that group in the wake of the storm.
Plaintiffs here seek to represent a class of indigent, disabled New Yorkers who (A) allegedly were qualified to receive government assistance in purchasing food pursuant to the government's Disaster Supplemental Nutrition Assistance Program ("D-SNAP"); but who (B) allegedly were unlawfully denied access to that assistance due to the mechanisms of the specific D-SNAP employed after the storm. Plaintiffs sue the New York City Human Resources Administration ("NYCHRA") and its commissioner, Robert Doar, claiming that the D-SNAP that NYCHRA administered after Hurricane Sandy violated the Americans With Disabilities Act, 42 U.S.C. §§ 12131, et seq. ("ADA"), the Rehabilitation Act, 29 U.S.C. §§ 794 et seq., the Food Stamp Act, 7 U.S.C. §§ 2011 et seq., and state and city local law.
Now before the Court are plaintiffs' motion for a preliminary injunction and for class certification; and defendants' motion to dismiss. First, as pleaded, it is impossible for plaintiffs to obtain any of the relief requested in the complaint without the Court finding that the post-Hurricane Sandy D-SNAP violated one or
2 


Case 1:12-cv-09162-KBF Document 38 Filed 03/18/13 Page 3 of 26
more of the listed statutes. Such a determination necessarily and directly implicates the legality of actions of New York State (otherwise referred to as the "State") and the federal government··in addition to those of the City. Accordingly, the City's motion to dismiss is granted; and the complaint is dismissed, without prejudice, for failure to join necessary parties under Federal Rules of Civil Procedure 12(b)(7) and 19. However, even if the complaint were not dismissed, plaintiffs' preliminary injunction request would still be denied. On the current record, plaintiffs have made an insufficient showing of irreparable harm.
For these reasons, as more fully explained below, defendants' motion is GRANTED IN PART and plaintiffs' motion is DENIED.
BACKGROUND The following facts are drawn from the "First Amended Class Action Complaint; Injunctive and Declaratory Relief' (the "Complaint" or "Comp!."), from the documents attached thereto and incorporated by reference therein, as well as from the parties various affidavits, declarations, and exhibits submitted··as is appropriate··on the parties' various motions. See Makarova v. United States, 201 F.3d 110, 113 (2000) (court may consider matters outside the pleadings on motion pursuant to Federal Rule of Civil Procedure 12(b)(1»; Dunmann Realty, LLC v. Faust, 267 F.R.D. 101, 101 n.1 (S.D.N.Y. 2010) (Rule 12(b)(7) motion); City of
3 


Case 1:12-cv-09162-KBF Document 38 Filed 03/18/13 Page 4 of 26
Newburgh v. Sarna, 690 F. Supp. 2d 136, 141 (S.D.N.Y. 2010) (preliminary
injunction motion).1
Hurricane Sandy and the Named Plaintiffs
Hurricane Sandy hit New York on October 29,2013. By the next day,
President Obama declared New York a "major disaster area." (CompI. ~ 44.)2 The
storm caused $20 billion in economic damages to the City's residents, businesses,
and agencies. (Id. ~ 45.) The practical effects of the storm were widespread, both in
form and geographic location. To name but a few: the storm caused the closure of
the City's subway systems, railroads, bridges, tunnels, ferries, airports, schools, and
parks; required the City to administer the delivery of food and essential survival
goods through the National Guard and other organizations; caused power plant
explosions; necessitated the evacuation of hospitals; caused fires that completely
destroyed neighborhoods; shut down gas, heat, and electricity services, and closed
I As these citations indicate, and as made clear, infra, in analyzing that aspect of defendants' motion based on Federal Rule of Civil Procedure 12(b)(7), the Court may consider matters outside the pleadings in ruling on whether parties are necessary to a litigation. Much of the factual material related to defendants' Rule 12(b)(7) motion is based on declarations and other documents not included in plaintiffs' Complaint. However, this is properly considered on this motion. See Dunmann Realty, 267 F.R.D. at 101 n.!. 2 The following documents are cited to in this recitation of the facts relevant to this Order: the Complaint (ECF No. 10); the Declaration of Susan Dooha in Support of Plaintiffs' Motion, dated Jan. 5,2013 (ECF No. 19) ("Dooha Dec!."); the Declaration of Catherine F. Bowman, dated Jan. 7, 2013 (ECF No 22) ("Bowman Decl."); the Declaration of Sherry Hanan, dated Jan. 7, 2013 (ECF No. 18) ("Hanan Dec!."); and the Second Supplemental Declaration of Roy Esnard in Opposition to Plaintiffs' Motion for Preliminary Injunctive Relief, dated Jan. 17, 2013 (ECF No. 29) ("2d Supp. Esnard Decl."). The Court also cites later to the parties' briefs on these motions: Plaintiffs' Memorandum of Law in Support of Their Motion for a Preliminary Injunction and Class Certification, dated Jan. 7, 2013 (ECF No. 15) ("PIs.' Mem."); Defendants' Memorandum of Law in Opposition to Plaintiffs' Motions for a Preliminary Injunction and Class Certification and in Support of Their Cross-Motion to Dismiss the First Amended Complaint, dated Jan. 17, 2013 (ECF No. 30) ("Defs.' Mem. and Opp'n"); Plaintiffs' Memorandum of Law in Opposition to Defendants' Cross-Motion to Dismiss Plaintiffs' First Amended Class Action Complaint and in Further Support of Plaintiffs' Motions for a Preliminary Injunction and Class Certification, dated Jan. 31, 2013 (ECF No. 32) ("PIs.' Opp'n and Reply"); and Defendants' Reply Memorandum of Law in Further Support of Their Cross-Motion to Dismiss the First Amended Complaint, dated Feb. 7, 2013 (ECF No. 35) ("Defs.' Reply").
4 


Case 1:12-cv-09162-KBF Document 38 Filed 03/18/13 Page 5 of 26
gas stations; flooded the World Trade Center site; caused environmental devastation across the metropolitan area; caused cranes to collapse; severely damaged and/or flooded homes across the region; led to looting and burglaries; and necessitated the evacuation of people across the metropolitan area.
Along with many others in New York, individuals with disabilities--and especially indigent individuals with disabilities--suffered dearly. (Dooha DecI. ~ 6.) Following Hurricane Sandy many such individuals lacked shelter, food, and medical care. (ld. ~ 7.) Indeed, the City's indigent disabled suffered particularly due to the extreme and "unprecedented" (PI.'s Mem. at 4) transportation obstacles in the storm's wake--including limited shuttle bus services, bus stations whose elevators were powerless, difficult scheduling issues, and general chaos within the City's public transport system. (See Dooha DecI. ~ 9.)
The named plaintiffs in this action are indigent disabled New Yorkers whose lives were thrown into turmoil by Hurricane Sandy. Plaintiffs' claims are essentially that, in addition to the difficulties they already faced due to the storm and their disabilities, the D-SNAP administered by the City in the wake of the storm--described below-·unlawfully inhibited their access to supplemental nutrition benefits to which they were entitled. Each plaintiff is in one or several ways disabled, and each was financially eligible for D-SNAP benefits. Plaintiff Alechea Toney-Dick suffers from multiple sclerosis, hyperthyroidism, chronic arthritis, chronic weakness, fatigue, and chronic obstructive pulmonary disease, all restricting her ability to breathe or move. (See CompI. ~~ 77-85.) PlaintiffX.T. suffers from acute pulmonary hypertension, receives intravenous medication
5 


Case 1:12-cv-09162-KBF Document 38 Filed 03/18/13 Page 6 of 26
twenty-four hours each day, and must carry an oxygen tank. (See id. ~~ 86-93.) Plaintiff Renee Moore has multiple dislocated discs and damaged nerves, asthma, high-blood pressure, is on prescription pain medication, and cannot very well stand or move without great pain. (See id. ~~ 94-102.) Plaintiff Sherry Hanan has seizure disorders, rheumatoid arthritis, chronic irritable bowel syndrome, and gastroesophageal reflux disease, and cannot function in crowded situations except with extreme difficulty. (See id. ~~ 103-110.) The Disaster Supplemental Nutrition Assistance Program
Mter a natural disaster, and a declaration from the President that a region is a "major disaster area," the United States Department of Agriculture ("USDA") provides nutrition assistance to victims through aD-SNAP. (2d Supp. Esnard Decl. ~~ 2, 4.) Although USDA is involved in planning, organizing, training personnel, and providing technical support for a D-SNAP--and although USDA funds the D· SNAP's benefits and half of its administrative costs--the administration and operation of the program falls to state or local agencies. (Id. ~~ 2, 5, 6.) For New York City to operate aD-SNAP, (1) NYCHRA and the State's Office of Temporary and Disability Assistance ("OTDA") must draft a D-SNAP plan, in accordance with USDA's guidance and consultation; (2) OTDA must submit the plan to USDA; and (3) USDA must approve, and then fund, the planned D-SNAP. (Id. ~ 6.) Once approved and operating, the D-SNAP provides a one-time payment equal to one month of nutritional assistance benefits to eligible households on criteria relaxed from that required for eligibility for the normal non-disaster supplemental nutritional assistance program ("SNAP"). (Id. ~ 3.)
6

Case 1:12-cv-09162-KBF Document 38 Filed 03/18/13 Page 7 of 26
Beginning on November 6,2012, NYCHRA, OTDA, and several New York counties--sometimes also in consultation with USDA, the City's Office of Emergency Management, and the City's Housing Authority--held daily teleconferences to
discus, inter alia, planning and implementing a D-SNAP for New York. <M:b ~~ 7, 8,
11, 13.) For example, various City and State authorities (including many City agencies other than NYCHRA) consulted on, and consulted with USDA about, inter alia, what locations to administer the D-SNAP out of; what the logistical requirements of D-SNAP centers would be; the D-SNAP eligibility requirements; and projections of the number of likely D-SNAP applicants. (Id. ~~ 8, 14, 16, 18, 19, 23.) These discussions culminated in OTDA submitting a D-SNAP plan to USDA on November 28, and USDA's approval of that plan on December 3. (Id. ~ 9.)
The D-SNAP approved by USDA began on December 12, 2013 and ran for seven days, terminating on December 18, 2013. (Id. ~ 22.) Although the D-SNAP was administered mainly by NYCHRA, OTDA and USDA were "on site" at both of the centers from which the D-SNAP was run (in Brooklyn and in Staten Island).
<M:b ~ 29; see also CompI. ~ 49.) Nobody disputes that the D-SNAP terminated on
December 18, 2013, and that there is, at present, no D-SNAP. Indeed, there cannot be another D-SNAP until there is another declaration by the President of certain regions as major disaster areas. (See 2d Supp. Esnard Dec!. ~ 4.)
Plaintiffs allege that the decision to operate only two D-SNAP sites made travel to the sites so burdensome as to be discriminatory under, inter alia, the ADA. (See Comp!. ~ 66.) Plaintiffs further allege that the D-SNAP's requirement of in­ person applications--subject to the sole exception of application through an
7 


Case 1:12-cv-09162-KBF Document 38 Filed 03/18/13 Page 8 of 26
authorized representative willing to attest under penalty of perjury to the application's truth--also violated the ADA because of (1) plaintiffs' transportation burdens; (2) the need created by the requirement to disclose personal, sensitive, and embarrassing information to others; (3) the lack, for many, of any potential authorized representative; and (4) the unwillingness of potential authorized representatives to subject themselves to penalty of perjury. (See id. ~~ 66-73; see also Dooha Dec!. ~ 10-12; Bowman DecL ~~ 25-28.)3 Plaintiffs allege that in a normal, non-disaster-related SNAP, applications may be made through home visits, and by phone, fax, the internet, and mail, and are accepted in person at several locations across the City. (See Compl. ~~ 57, 58.) If such accommodations had been in place post-Hurricane Sandy, plaintiffs argue, those accommodations might have reasonably accommodated plaintiffs' disabilities in satisfaction of the ADA's requirements. (See PIs.' Opp'n and Reply at 22-26.)
The named plaintiffs, likely like many other indigent disabled New Yorkers, had trouble accessing the benefits the D-SNAP was meant to provide. Toney-Dick was unable to apply because her disabilities essentially prevent her from moving without assistance, her husband works full-time, her son attends school full-time, and she lives a long distance away from any D-SNAP center. (See CompL ~~ 78-81, 84-85.) Similarly, X.T. and Moore's disabilities severely limit their abilities to travel, and neither could make it to any D-SNAP center or identify friends or family
3 Plaintiffs' allegation that authorized representatives would have to attest under penalty of perjury to the truth of their principals' applications is based on a December 6,2013 teleconference during which NYCHRA's general counsel, Roy Esnard, allegedly stated as much. (Bowman Decl. ~ 26.) The Court notes that Esnard himself denies ever having made any such statement. (See 2d Supp. Esnard Decl. ~ 32.)
8

Case 1:12-cv-09162-KBF Document 38 Filed 03/18/13 Page 9 of 26
members to apply as their representatives. (See CompI. ~~ 90, 98.) Hanan is similarly limited and could not make it to any D-SNAP site, but was, in fact, able to send her brother to apply as her authorized representative. (See Hanan DecI. ~ 8.) However, because oflong lines and delays at the site, Hanan's brother was unable to complete any application for Hanan. (See id.)
Although they allegedly failed to obtain D-SNAP benefits during the period of the D-SNAP's operation, Toney-Dick, Moore, and X.T. have--claim defendants--since retroactively received all D-SNAP amounts to which they might have been entitled. (See 2d Supp. Esnard DecI. ~~ 33-39; Defs.' Reply at 4 n.2.) There is no dispute that Hanan has not received any D-SNAP payments. The Current Motions
Plaintiffs filed the current Complaint on December 21,2013, after the Court had denied their initial requests for injunctive relief. (See ECF Nos. 7, 10.) In their Complaint, plaintiffs seek to represent a class consisting of:
all individuals in New York City who (a) have a physical or mental impairment that substantially limits one or more major life activities within the meaning of the ADA and have a record of such an impairment, (b) are eligible to apply for D-SNAP benefits, (c) reside in the covered zip codes for [NYCHRA's] D-SNAP program [sic]; and (d) need reasonable accommodations to enable them to apply for D-SNAP benefits. (CompI. ~ 29.) The complaint also seeks (1) a declaration that defendants' actions in administering the D-SNAP violated the ADA, the Rehabilitation Act, the Food Stamp Act, and state and local law; (2) a mandatory injunction either (a) requiring defendants to permit members of the proposed class to apply for D-SNAP benefits
9

Case 1:12-cv-09162-KBF Document 38 Filed 03/18/13 Page 10 of 26

through the application procedures generally available for the normal SNAP, or alternatively (b) allowing retroactive applications; and (3) court orders prohibiting defendants from discriminating against the proposed class and/or requiring defendants to make reasonable accommodations for the class. (See id. ~~ 137-140.)
In connection with filing their complaint, plaintiffs also moved for class certification and for a preliminary injunction. (See generally PIs.' Mem.) As plaintiffs' papers make abundantly clear, the preliminary, mandatory injunction sought is only for a court order compelling defendants to "request that [OTDA] permit" the City to administer a non-discriminatory D-SNAP. (ld. at 1.) In other words, plaintiffs seek only an order requiring defendants to ask OTDA to ask USDA for a non-discriminatory D-SNAP if and when the next D-SNAP is implemented. (See PIs.' Opp'n and Reply at 12-13 ("[T]he injunction would merely require Defendants to apply4 for a D-SNAP program [sic]--and does not direct that specific benefits be issued or eligibility decisions be made ... ."); id. at 14 ("Plaintiffs seek only an injunction requiring Defendants to reguest approval from OTDA and USDA to provide meaningful access through reasonable accommodations in applying for D­ SNAP benefits. Plaintiffs do not asknlet alone seek to reguire--OTDA or USDA to respond to defendants' request in any particular manner.") (emphasis in original and added).)
Defendants have since moved to dismiss the Complaint--and have opposed the preliminary injunction motion--on various grounds, including, most importantly

4 It is, of course, not defendants who would apply for any D·SNAP, but ODTA. DecL ~ 6.)
10 


2d Supp. Esnard

Case 1:12-cv-09162-KBF Document 38 Filed 03/18/13 Page 11 of 26
to the discussion below, that the Complaint fails to name necessary parties under Federal Rule of Civil Procedure 19--to wit, OTDA and USDA.
DISCUSSION Mootness
Defendants initially argue that the claims of three of the four named plaintiffs--Toney-Dick, Moore, and X.T.--are moot, and that therefore dismissal of those plaintiffs' claims is required. Because mootness raises issues of the Court's subject matter jurisdiction, the Court addresses that issue first--and finds that these claims are not moot.
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova, 201 F.3d at 113; see Williams v. Skyline Auto. Inc., 11 Civ. 8318, 2012 WL 1965334, at *2 (S.D.N.Y. May 24, 2012). To survive a Rule 12(b)(1) challenge to the Court's subject matter jurisdiction, the plaintiff must "allege facts that affirmatively and plausibly" suggest that jurisdiction exists. Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011); see GMA Accessories. Inc. v. Dorfman-Pacific Co., Inc., 11 Civ. 3731, 2012 WL 899385, at *3 (March 16, 2012) (dismissal is proper "when the complaint fails to allege sufficient allegations to support subject matter jurisdiction"). The Court draws on both the well-pleaded facts from the complaint--and the documents attached thereto and incorporated therein, assuming such facts to be true, and construing reasonable inferences in the plaintiffs' favor--and on relevant evidence from outside the
11 


Case 1:12-cv-09162-KBF Document 38 Filed 03/18/13 Page 12 of 26
pleadings. Amidax, 671 F.3d at 145; Makarova, 201 F.3d at 113; City of Newburgh, 690 F. Supp. 2d at 141.
"Pursuant to Article III of the [United States] Constitution, federal courts may only entertain actual cases or controversies." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). "That requirement has two components: ... whether the plaintiffs who have brought the action have standing, and whether over the course of the litigation the matter has been rendered moot." Hedges v. Obama, _ F. Supp. 2d _ , 2012 WL 3999839, at *21 (S.D.N.Y. Sept. 12, 2012) (internal citation omitted).
Standing--which requires an "actual or imminent" injury to "a legally protected interest"; a causal connection between defendants' alleged conduct and plaintiffs' injury; and redressability from a favorable judicial decision--is determined as of the outset of the litigation. Id. (citing Lujan, 504 U.S. at 561,569 n.4). Mootness, on the other hand--which requires that an action be "real and live, not feigned, academic or conjectural"--can arise at any stage during the litigation's course. Id. (citing Powell v. McCormack, 395 U.S. 486, 489 (1969); Russman v. Bd. of Educ. of the Enlarged City Sch. Dist. of the City of Watervliet, 260 F.3d 114,118 (2d Cir. 2001». "However, a case is not moot when there is a reasonable expectation that the alleged violation may recur." Id. (citing Murphey v. Hunt, 455 U.S. 478, 482 (1982». Nor is a case moot "if the underlying dispute ... is 'capable of repetition, yet evading review.'" Irish Lesbian & Gay Org. V. Giuliani, 143 F.3d 638, 647 (2d Cir. 1998) (quoting Neb. Press Ass'n V. Stuart, 427 U.s. 539, 546 (1976».
12 


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Defendants do not contest plaintiffs' standing to bring this action; however, they do argue that plaintiffs Toney-Dick, Moore, and X.T.'s claims have been rendered moot by their receipt ofD-SNAP funds to which they were entitled. (See Defs.' Mem. and Opp'n at 16; Defs.' Reply at 4.)5 However, defendants' argument-­ and the parties' disagreements concerning the applicability of the so-called "voluntary cessation doctrine"--misunderstands the nature of plaintiffs' claims. It is true that any claims plaintiffs make for unpaid D-SNAP entitlements6 might be--if those amounts have in fact been paid--moot. However, the crux of plaintiffs' complaint--and the entire issue in this lawsuit--is plaintiffs' attempt to prevent a situation similar to the post-Hurricane Sandy D-SNAP, which plaintiffs allege violated several statutes, from occurring again. This requested declarative and injunctive relief has not been mooted by plaintiffs' receipt of D-SNAP funds. Indeed, the entire point is that, in the next Hurricane Sandy, the proposed class need not use litigation and/or wait until the program ends to receive D·SNAP funds to which they are entitled, but instead will receive those funds during the emergency and when they are most needed. This dispute is "real and live," and is not "academic or conjectural"·-it is just the type that would repeat and evade review were the City to administer another week-long D·SNAP after the next natural
5 In fact, defendants argue that this purported mooting of plaintiffs' claims relieves plaintiffs of standing. (See Defs.' Mem. and Opp'n at 16.) However, this assertion misunderstands the fundamental differences between standing and mootness--explained briefly supra. Because defendants are not arguing that plaintiffs had no redressable injury at the time their claims arose, and instead that their receipt of D-SNAP funds has made their claims obsolete, the Court analyzes defendants' argument pursuant to mootness principles, not standing principles. 6 For example, plaintiffs' "in the alternative" prayer for relief that members of the purported class be allowed to apply now for D-SNAP benefits, even though no one disputes that the program terminated on December 18, 2012. (See Compl. ~ 138; 2d Supp. Esnard Dec!. ~ 22.)
13 


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disaster. Therefore, plaintiffs' claims are not moot simply because they may, or may
not, have received D-SNAP funds. 7
Food Stamp Act
The City next argues that dismissal of plaintiffs' claims brought pursuant to
the Food Stamp Act is warranted because the statutory provisions plaintiffs invoke
do not provide for a private right of action. Like mootness, whether a certain
statute can properly be sued upon in order to confer jurisdiction in the Court under
28 U.S.C. § 1331 is an issue going to the Court's subject matter jurisdiction. It is
therefore considered prior to defendants' other arguments.
Defendants' position that no private right of action exists under the
provisions of Section 10 of the Food Stamp Act invoked by plaintiffs, 7 U.S.C. §
2020(e)(2)(B)(i)8 and (e)(14),9 need not detain the Court for long. Even if it is true,
7 Defendants also argue that plaintiff Hanan fails to state a claim--and that therefore dismissal is warranted under Federal Rule of Civil Procedure 12(b)(6)--because it was Hanan's brother's decision not to stand in line all day, and not the D-SNAP program's administrative mechanisms, that caused Hanan not to receive her benefits. (See Defs.' Mem. and Opp'n at 17.) This chicken-and-egg argument is, of course, without merit. It was the D-SNAP program and its purported reasonable accommodations--including allowing a representative to stand on line for a beneficiary--that caused Hanan's brother to stand on line for Hanan's benefits. It was the alleged unreasonableness of that procedure--coupled with the purported reasonableness of alternative procedures--that forms the basis of Hanan and the other plaintiffs' claims. The City cannot, of course, implement certain procedures and then defend those procedures against purported civil rights challenges by arguing that plaintiffs have availed themselves precisely of the procedures implemented. 8 "The State plan of operation for the [supplemental nutrition assistance program] shall provide, among such other provisions as may be required by regulation ... that the State agency shall establish procedures governing the operation of supplemental nutrition assistance program offices that the State agency determines best serve households in the State, including households with ... disabled members .... In carrying out that [directive], a State agency shall provide timely, accurate, and fair service to applicants for, and participants in, the supplemental nutrition assistance program." 7 U.S.C. § 2020(e), (e)(2)(A) and (e)(2)(B)(i). 9 "The State plan of operation for the [supplemental nutrition assistance program] shall provide, among such other provisions as may be required by regulation ... that the State agency shall specify a plan of operation for providing supplemental nutrition assistance program benefits for households that are victims of a disaster; that such plan shall include, but not be limited to, procedures for
informing the public about the disaster program and how to apply for its benefits, coordination with 14

Case 1:12-cv-09162-KBF Document 38 Filed 03/18/13 Page 15 of 26
as defendants suggest, that there exists not "a single case finding a private right of action under Sections 2020(e)(14) and 2020(e)(2)(B)(i) of the [Food Stamp] Act" (Defs.' Reply at 6),10 there do exist myriad cases, not only allowing private rights of action under other sections of the Food Stamp Act, but articulating the permission of such actions generally under the act. (See PIs.' Opp'n and Reply at 15-16); see also Briggs v. Bremby, 12 CV 324, 2012 WL 6026167, at *6 (D. Conn. Dec. 4, 2012) (collecting cases); id. at *10; M.K.B. v. Eggleston, 445 F. Supp. 2d 400,428-29 (S.D.N.Y. 2006); Williston v. Eggleston, 379 F. Supp. 2d 561, 575-79 (S.D.N.Y. 2005).
Like the other sections of the Food Stamp Act the courts have found provide for a private right of action, Sections 2020(e)(2)(B)(i) and (e)(14) set forth provisions for the how and when private individuals and households may obtain the supplemental nutrition assistance generally provided by the statute. Defendants provide no reason to deviate from this line of cases, and the Court will not do so. Plaintiffs therefore may bring actions under 7 U.S.C. § 2020(e)(2)(B)(i) and (e)(14). Failure to Join a Party under Rule 19 Necessary Parties under Rule 19(a)
"Under [Federal Rule of Civil Procedure] 12(b)(7), an action must be dismissed for failure to join a party under [Federal Rule of Civil Procedure] 19." Federal Ins. Co. v. SafeNet, Inc., 758 F. Supp. 2d 251, 257 (S.D.N.Y. 2010). "Such a
Federal and private disaster relief agencies and local government officials, application procedures to reduce hardship and inconvenience and deter fraud, and instruction of caseworkers in procedures for implementing and operating the disaster program." 7 U.S.C. § 2020(e) and (e)(14). 10 Indeed, plaintiffs do not identify any such case, and the Court can find none.
15

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ruling is within th[e] Court's discretion." Walker v. Eggleston, 04 Civ. 369, 2006 WL 2482619, at *6 (S.D.N.Y. Aug. 29, 2006) (citing Viacom Int'I. Inc. v. Kearney, 212 F.3d 721,725 (2d Cir. 2000». "When reviewing a motion to dismiss under Rule 12(b)(7), the Court may consider documents and facts outside the pleadings." Dunmann Realty, 267 F.RD. at 101 n.1.
On a Rule 12(b)(7) motion, the Court first determines "whether an absent party belongs in the suit." SafeNet, 758 F. Supp. 2d at 257 (citing Viacom, 212 F.3d at 724). A party may so belong if, inter alia, "that person claims an interest relating to the subject of the action11 and is so situated that disposing of the action in the person's absence may as a practical matter impair or impede the person's ability to protect the interest." Fed. R Civ. P. 19(a)(I)(B)(i); see id. 1966 Amendment (rule "protect[s] the person ... against the practical prejudice to him which may arise through a disposition of the action in his absence").
An absent party's ability to protect its interests may be impeded or impaired if, inter alia, the court's rulings in the litigation before it might affect the party's rights in other possible litigations to which it is or could be party, by principles of estoppel or otherwise. See, Q.&.,., Crouse-Hinds Co. v. InterNorth, Inc., 634 F.2d 690, 700-01 (2d Cir. 1980) (party was necessary when disposition of litigation at bar would affect absent party's contract rights); Dunmann Realty, 267 F.RD. at 103-04 (rights under loans); Delcon Const. Corp. v. U.S. Dep't of Housing & Urban Dev., 205 F.RD. 145, 147-48 (S.D.N.Y. 2002); Smith v. Kessner, 183 F.RD. 373, 375
11 Although plaintiffs argue that OTDA and USDA will suffer no prejudice due to their awareness of the current litigation and their failure, so far, to intervene (PIs.' Opp'n and Reply at 14), "an absentee is not obliged to intervene" for Rule 19 to be effective. SafeNet, 758 F. Supp. 2d at 259.
16 


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(S.D.N.Y. 1998) ("If [plaintiff] is unsuccessful, it is possible that claims by [the absent party] would be barred by principles of res judicata and collateral estoppeL");
Global Discount Travel Servs., LLC v. Trans World Airlines. Inc., 960 F. Supp. 701,
708 (S.D.N.Y. 1997) (Sotomayor, J.) (even when court's disposition would only be persuasive, and not binding, authority on court hearing absent party's litigation,
court's disposition of action would "undoubtedly have a practical effect on any
subsequent action") (emphasis in original).
Similarly, an absent party's ability to protect its interests may be impeded or
impaired if the court's ruling would eventually require payment of funds by that
party. See Walker, 2006 WL 2482619, at *6. Finally, when "equitable relief is
sought in addition to monetary damages, the presence of all parties [who might be
affected by an order of relief] is necessary" for Rule 19(a) purposes. Kermanshah v.
Kermanshah, 08 Civ. 409, 2010 WL 1904135, at *3 (S.D.N.Y. May 11, 2010). If the person has not been joined to the action, "the court must order that the
person be made a party." Fed. R. Civ. P. 19(a)(2); id. 1966 Amendment ("if he has not been joined, the court should order him to be brought into the action"). If this will not eliminate a court's jurisdiction, it is often done through the filing of an
amended complaint.l2 See Dunmann Realty, 09 Civ. 7651 (S.D.N.Y.) ECF Nos. 27,
12 An action is only dismissed under Rules 12(b)(7) and 19 if all of the following are true: (1) the absent party belongs in the litigation as discussed supra (that is, that it is "necessary"); (2) the absent party cannot be joined to the litigation for jurisdictional or other reasons; and (3) the court "determine[s] whether, in equity and good conscience," that the action cannot proceed only among the existing parties (requirements (2) and (3) meaning that the absent party is "indispensable"). Fed. R. Civ. P. 19(a), (b); Dunmann Realty, 267 F.R.D. at 103. Because it appears that the absent parties here, OTDA and USDA, could be joined without eliminating the Court's jurisdiction--indeed, defendants do not even argue that this would be the case--the Court does not dismiss this action, but instead dismisses the operative complaint and directs plaintiffs to file an amended version naming
all necessary parties. 17

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31; Walker, 04 Civ. 369 (S.D.N.Y.) ECF Nos. 63, 65; Deleon Const., 01 Civ. 3295 (S.D.N.Y.) ECF Nos. 20, 24. 
 OTDA and USDA are Necessary Parties and Must be Joined 

As set forth above, the procedure for implementation of a D-SNAP is essentially the following: (1) a disaster occurs creating the need for aD-SNAP; (2) the relevant City and State agencies..respectively, NYCHRA and OTDA··discuss, and agree upon, an appropriate D·SNAP; (3) OTDA requests the agreed-upon D· SNAP from USDA; (4) USDA approves the D·SNAP, and provides funding for it; and (5) the City authorities administer the D·SNAP on the ground, with advice and input from OTDA and USDA-·and with half of the administration costs paid by the City and half by USDA.
The D·SNAP at issue here was submitted to USDA by OTDA on November 28, 2012, which approved the D·SNAP on December 3. It was the procedures in this very plano-discussed with, and approved by, OTDA and USDA--that form the basis of plaintiffs' action here. To cite a few examples, all of the government bodies discussed: (1) the decision to administer the D·SNAP out of only two locations·­ which is the very root of plaintiffs' case; (2) the pros and cons of running the D· SNAP out of the existing SNAP locations; (3) logistical efforts necessary for the D­ SNAP; (4) the D·SNAP's eligibility requirements; and (5) D·SNAP application projections. These decisions go to the heart of the practices plaintiffs allege to have been discriminatory.13
13 Indeed, plaintiffs' own papers concede that the D·SNAP, planned through consultations among all
the government entities involved, must be applied for by OTDA, not NYCHRA. Plaintiffs write that 18 


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Moreover, plaintiffs' prayer for relief effectively requests that the Court hold OTDA and USDA's actions to be violative of the federal statutes plaintiffs invoke. Plaintiffs ask the Court to "[a]djudge and declare that the policies, practices, omissions and conditions described" in the Complaint "are in violation of the rights of the plaintiffs and the class they seek to represent under" the ADA, the Rehabilitation Act, the Food Stamp Act, and state and local law. (Compi. ~ 137.) The remainder of plaintiffs' prayer is entirely based on that ruling-win other words, if the Court cannot find that the D-SNAP violated federal law, then plaintiffs would not be entitled to the relief they request springing from that violation.
The problem for plaintiffs is that the "policies, practices, omissions and conditions" alleged are not those of just the City--they are those of the State and the federal government as well. It would simply be impossible to declare that the City has acted in any unlawful manner without simultaneously declaring that the State and federal government have likewise done so. This is not, for example, the case of a City entity simply implementing a federal government- or State-funded program, without any input from the federal or State government and without the federal or State agencies involved in the creation, funding, planning, or decision-making processes involved. Such a case, based purely and solely on the implementing acts of the City authorities, might survive a Rule 12(b)(7) motion. Instead, this is a case where all levels of government are in an intertwined and active manner putting
their preliminary injunction, discussed infra, "would merely require Defendants to apply for a D­ SNAP program [sic)--and does not direct that specific benefits be issued or eligibility decisions be made ...." (pIs.' Opp'n and Reply at 12-13.) But, as discussed supra, defendants would and could never be the entities "apply[ing]" for any D-SNAP--that entity would be OTDA.
19

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together a comprehensive plan to help those who need help in times of disaster--and then tasking the City to administer that plan.14 Any unlawful acts taken in the case pleaded before the Court are not acts only of the City authorities, but are acts of the State and federal governments as well.
But the State and federal governments are not before the Court. And, as such, Rule 19 requires that plaintiffs bring those entities in front of the Court before the Court can issue any ruling disparaging of their rights--which a ruling that their actions violated federal law would do.
OTDA and USDA are therefore necessary parties to this litigation. Accordingly, plaintiffs must join OTDA and USDA as defendants to this action if it is to proceed. l5
14 Plaintiffs' reliance on Arthur v. Starrett City Assocs., 89 F.R.D. 542 (E.D.N.Y. 1981) is thus entirely inapposite. As a preliminary matter, that case's holding was not--as forms the foundation of defendants' argument here--based on the level of involvement or interdependence between Starrett (the City analog) and HUD (the OTDA and USDA analog). The Court's holding was based instead on the fact that the Arthur plaintiffs challenged Starrett's tenant-selection policies, not its marketing policies (which were the policies HUD allegedly approved under defendants' Rule 19 theory). 89 F.R.D. at 545-46. However, even if the case's holding were on point--which it is not--the case still would not support plaintiffs' position here. In Arthur, the entire process of coming up with the policies and plan allegedly requiring HUD's participation in the litigation were the product of Starrett. HUD had no involvement itself except and until having to approve the plans submitted by Starrett. Id. at 546-47. As discussed supra, that does not describe the interactions between the City, the State, and the federal government at issue in this case. 15 Having determined that plaintiffs' complaint must be dismissed for failure to join necessary parties--parties whose interests cannot be protected without the Court hearing their arguments concerning plaintiffs' claims--the Court will not and cannot rule on defendants' further grounds to dismiss this action.
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Irreparable Harm Even if the Complaint named all required parties, plaintiffs' request for
preliminary injunctive relief would nonetheless be denied. Irreparable harm is the single most important prerequisite to the Court's
issuance of preliminary injunctive relief.16 Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009). Indeed, a party must first prove irreparable harm before the Court should even consider the other requirements. Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir. 2005). The injury alleged to be irreparable must be actual and imminent, not merely possible. Id. Moreover, the injunction must address the injury alleged to be irreparable--the Court should not grant the injunction if it would not so prevent that injury. Faiveley, 559 F.3d at 118 ("We have explained that to satisfy the irreparable harm requirement, plaintiffs must demonstrate that absent a preliminary injunction they will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve the harm.") (internal quotation marks and alterations omitted) (emphasis added). Finally, the fact that an alleged harm can be remedied in money damages is the antithesis of irreparable harm, and such a fact requires that the Court not find an irreparable injury, Synergy Advanced Pharm., Inc. v. CapeBio, LLC, 10 Civ. 1736, 2010 WL 2194809, at *4 (S.D.N.Y. June 1, 2010) ("irreparable harm by definition 'cannot be
16 The requirements for preliminary injunctive relief are: (1) irreparable harm in the absence of the specific relief requested; (2) a balance of hardships favoring the plaintiffs; (3) the preliminary injunction being in the public's interest; and (4) either (a) a likelihood of success on the merits, or (b) serious questions going to the merits and the balance of hardships decidedly favoring the plaintiffs. See WPIX, Inc. v. ivi, Inc., 765 F. Supp. 2d 594, 601 (S.D.N.Y. 2011).
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remedied by an award of monetary damages"') (guoting Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 97 (2d Cir. 2005); see also Faiveley, 559 F.3d at 118 ("Where there is an adequate remedy at law, such as an award of money damages, injunctions are unavailable except in extraordinary circumstances."); Register.com, Inc. v. Verio. Inc., 356 F.3d 393, 404 (2d Cir. 2004) ("If an injury can be appropriately compensated by an award of money damages, then an adequate remedy at law exists, and no irreparable injury may be found to justify specific relief."). Thus, "[m]ere injuries, however substantial, in terms of money, time and energy ... are not enough." Jayaraj v. Scappini, 66 F.3d 36,39 (2d Cir. 1995) (guoting Sampson v. Murray, 415 U.S. 61, 90 (1974». "Where monetary damages may provide adequate compensation, a preliminary injunction should not issue." Id.
The current Complaint, and the arguments plaintiffs assert in support of their preliminary injunction motion, fail these requirements.
First, and most importantly, the relief sought in plaintiffs' preliminary injunction application would not remedy the harm alleged. Plaintiffs' claims are that they were unlawfully prevented from obtaining D·SNAP payments during the period of the D·SNAP due to defendants' discriminatory D·SNAP procedures. But the injunctive relief plaintiffs here request does not remedy that injury: "Plaintiffs seek only an injunction requiring Defendants to reguest approval from OTDA and USDA to provide meaningful access through reasonable accommodations in applying for D-SNAP benefits. Plaintiffs do not askulet alone seek to reguire-­ OTDA or USDA to respond to defendants' request in any particular manner." (PIs.' Opp'n and Reply at 14 (emphasis in original and added); see also id. at 12·13 ("[T]he
22 


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injunction would merely require Defendants to apply for a D·SNAP program [sic]-· and does not direct that specific benefits be issued or eligibility decisions be made .. . .").) In other words, plaintiffs ask the Court to compel the City to ask the State to ask the federal government for a better plan when it comes to a future D-SNAP··all without an order compelling any party involved to actually implement a better plan when it comes to that future D-SNAP. But not only would this relief not address plaintiffs' injury, it is in fact not judicial relief at alL It neither provides plaintiffs with the amounts they allegedly should have received, nor actually provides them with a D·SNAP that addresses their concerns. Injunctive relief is an extraordinary remedy; the requested relief is not appropriate injunctive relief.
Second, plaintiffs concede that their injuries are remediable by money damages:
Plaintiffs who ordinarily had enough resources to purchase necessities have, in the wake of Hurricane Sandy, had to pay significant out-of·pocket costs for food. Such out-of-pocket expenses have diverted their scant resources from other essential needs, such as shelter. D­ SNAP benefits would ease their unexpected hardship with resources to provide for themselves and their families .... (PIs.' Mem. at 11 (internal citation omitted).) But the "D·SNAP benefits" that "would ease [plaintiffs'] unexpected hardship" would not be D·SNAP payments, per They would be damages ordered by the Court. No one disputes that the D­ SNAP, which could and did only run for one week, is terminated. As stated above, plaintiffs' claims are that they were unlawfully prevented from obtaining D·SNAP payments during the period of the D·SNAP due to defendants' discriminatory D­ SNAP procedures. To the extent plaintiffs are here seeking those very same
23 


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payments, those are claims for money damages, and accordingly a preliminary
injunction is unavailable. See Faiveley, 559 F.3d at 118; Jayaraj, 66 F.3d at 39.17
Finally--and to the extent plaintiffs are not seeking payment of D-SNAP
amounts they allegedly were entitled to but could not obtain due to the D-SNAP
procedures, and are only seeking a ruling that would inform the implementation of
the next D-SNAP--plaintiffs concede that there is no present irreparable harm:
"New York state and city officials, along with experts, have stressed that
catastrophes can ravage New York again; if Defendants' discriminatory practices
are not enjoined, Defendants will likely impose a similarly discriminatory and
insufficient structure in any future D-SNAP program [sic], causing irreparable
harm ...." (PIs.' Mem. at 9 (emphasis added).) But the "irreparable harm"
supporting injunctive relief must be harm now, not harm in the future resulting
from the next superstorm that does not exist and is indeed not yet even on the radar
screen (literally). Indeed, should this case be resolved at trial or otherwise, it will
be that ruling that prevents defendants from--allegedlyndiscriminating against
17 Plaintiffs cite several cases for the proposition that, although couched in dollars-lost terms, claims for government or public welfare benefits made unlawfully unavailable due to discriminatory practices have long been recognized to support the irreparable harm requirement for preliminary injunctions. (See PIs: Mem. at 10; PIs.' Opp'n and Reply at 18.) But the cases cited are distinguishable on the key issue involved in this case. Here, the D-SNAP is terminated--there is no more D-SNAP; any amounts paid pursuant to any order of this Court would be retroactive damages, not payments made under an ongoing program; and, contrawise, any D-SNAP amounts to be paid would be paid not under the post-Hurricane Sandy D-SNAP, but under the next D-SNAP implemented after the next disaster. Unlike this case, the cases cited by plaintiffs all concern ongoing government assistance programs, the benefits of which were allegedly unlawfully deprived plaintiffs due to discriminatory practices. See Henrietta D. v. Giuliani, 119 F. Supp. 2d 181, 203, 209 (S.D.N.Y. 2000) (ongoing AIDS·related benefits); Reynolds v. Giuliani, 35 F. Supp. 2d 331,336· 37, 339·40 (S.D.N.Y. 1999) (challenge to newly-implemented application procedures for ongoing nutritional assistance benefits); Morel v. Giuliani, 927 F. Supp. 622, 635 (S.D.N.Y. 1996) ("protracted denial of aid continuing benefit"); Brown v. Giuliani, 158 F.R.D. 251 (E.D.N.Y. 1994) (ongoing welfare benefits).
24 


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disabled indigent New Yorkers through an unlawful D-SNAP. The Court is mindful of the plight of plaintiffs in this action. But the Court is likewise mindful of the legal requirements for issuance of a preliminary injunction, which require a present irreparable injury.
For all these reasons, even if the Court were not dismissing the Complaint and ordering plaintiffs to file a second amended complaint, the Court would still deny plaintiffs' motion for a preliminary injunction.
CONCLUSION For the reasons stated above, defendants' motion to dismiss is GRANTED IN PART, and plaintiffs' Complaint is dismissed without prejudice to the filing of a second amended complaint. Without an operative complaint, plaintiffs' motion for preliminary injunctive relief and class certification is DENIED, without prejudice, as moot. Plaintiffs are hereby ORDERED to file their second amended complaint, with--or without--any application for preliminary injunctive relief, on ECF not later than Friday, March 29, 2013. The Court emphasizes that although plaintiffs' motion for preliminary injunctive relief is denied and their Complaint dismissed, plaintiffs have not lost this case. Indeed--and putting aside the technical litigation aspects of this case--it is clear that the D-SNAP applied for by the State, authorized by USDA, and administered by the City did not reach as many of its intended beneficiaries as it could have. Whether as a matter of law the program was unlawfully discriminatory
25 


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and/or whether alternative reasonable accommodations existed--taking into account the various and extreme exigencies facing the City authorities in the wake of Hurricane Sandy--is a question left for another day.
The Clerk of the Court is directed to terminate the motions at ECF Nos. 14 and 28.

SO ORDERED.

Dated:

New York, New York March ~, 2013

KATHERINE B. FORREST United States District Judge

26

 
 Case 1:12-cv-09162-KBF Document 41 Filed 03/29/13 Page 1 of 35

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

ALECHEA TONEY-DICK, XT., RENEE MOORE, and SHERRY HANAN, individually and on behalf of all others similarly situated,
Plaintiffs,
-against-
ROBERT DOAR, in his official capacity as Commissioner of the New York City Human Resources Administration; THE NEW YORK CITY HUMAN RESOURCES ADMINISTRATION; KRISTIN M. PROUD, in her official capacity as Acting Commissioner of the New York State Office of Temporary and Disability Assistance; the NEW YORK STATE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE; TOM VILSACK, in his official capacity as Secretary of the United States Department of Agriculture; and the UNITED STATES DEPARTMENT OF AGRICULTURE,
Defendants.

12 CIV. 9162 (KBF)
SECOND AMENDED CLASS ACTION COMPLAINT

PRELIMINARY STATEMENT 1. Plaintiffs bring this class action for declaratory and injunctive relief under Title II of the Americans with Disabilities Act ("ADA"), Section 504 ofthe Rehabilitation Act of 1973, the Food Stamp Act, and New York State and City statutes and regulations that bar disabilitybased discrimination in public benefits programs operated by Defendants. 2. This action alleges discrimination on the basis of disability by Defendants ROBERT DOAR, in his official capacity as Commissioner of the New York City Human Resources Administration ("HRA"), and the NEW YORK CITY HUMAN RESOURCES

Case 1:12-cv-09162-KBF Document 41 Filed 03/29/13 Page 2 of 35
ADMINISTRATION ("HRA") (collectively, the "CITY DEFENDANTS"); KRISTIN M. PROUD, in her official capacity as Acting Commissioner of the New York State Office of Temporary and Disability Assistance, and the NEW YORK STATE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE ("OTDA") (collectively, the "STATE DEFENDANTS"); and TOM VILSACK, in his official capacity as Secretary of the United States Department of Agriculture, and the UNITED STATES DEPARTMENT OF AGRICULTURE ("USDA") (collectively, the "FEDERAL DEFENDANTS") in the design, approval, implementation and administration ofHRA's Disaster Supplemental Nutrition Assistance Program ("D-SNAP"), created in response to Hurricane Sandy in New York City. See HRA Policy Directive #12-32ELI, "Disaster Supplemental Nutrition Assistance Program" (hereinafter referred to as "PD #1232-ELI").
3. D-SNAP is a public benefits program that provides temporary food assistance benefits to eligible individuals affected by a disaster in the form of one-time issuance of SNAPlFood Stamp benefits to assist in paying for a month's worth of food.
4. D-SNAP benefit levels are fixed amounts based on household size: an eligible family of three, for example, will receive $526; an eligible single person will receive $200.
5. To address economic losses associated with a disaster, D-SNAP eligibility guidelines are designed to assist a far broader portion of the public than the regular SNAP program, with higher income eligibility guidelines, the use of net-as opposed to grossincome, deductions for disaster-related expenses, and the waiving of restrictions that bar many immigrants and students from participating in the regular SNAP program.
6. Individuals currently receiving SNAP benefits are not eligible to apply for the D-
2

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SNAP program, but they are provided a supplement to their regular monthly SNAP benefit ("Parity Payments").
7. At the federal level, the D-SNAP program is administered by the Food and Nutrition Service, a division within Defendant USDA.
8. Upon information and belief, in New York State, an application for aD-SNAP program is made by the OTDA to the federal government only when a local social services district, in New York City, Defendant HRA, expresses an interest in applying for the program.
9. On November 28,2012, OTDA submitted a request on behalf ofHRA and was approved by USDA to operate and administer D-SNAP for those eligible individuals affected by Hurricane Sandy in New York City to those eligible individuals residing in twelve (12) zip codes in Queens, Brooklyn, Manhattan and Staten Island. See PD #I2-32-ELI.
10. Upon information and belief, USDA policy contemplates allowing D-SNAP applicants to file some application information online. Moreover, USDA policy guidance provides for an eligibility worker to go to the home of an elderly resident who is homebound and unable to apply in person in order to facilitate that person's application for D-SNAP benefits.
11. In the HRA D-SNAP program, however, no exceptions were provided in accordance with those contemplated in USDA policy. Instead, the HRA D-SNAP guidelines required all applicants for D-SNAP to appear in person, unless that applicant secured an authorized representative to apply in person as a surrogate.
12. Such surrogates must possess extensive and intimate knowledge of the applicant's personal and financial affairs. At the time the HRA D-SNAP program was announced to the public, HRA also stated that a representative applying on behalf of another individual must attest
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to the truth of each statement made on the application under penalties of perjury. 13. If such an attestation was made, those wishing to use an authorized representative
could show sufficient proof of identity merely by attestation or through various types of documentation, such as a passport or birth certificate, and they could verify income through attestation or a pay stub. No personal interview was required for applicants who utilized this surrogate procedure.
14. Under the current HRA D-SNAP program, D-SNAP applications were to be accepted for the period from December 12, 2012 to December 18, 2012.
15. HRA designated only one location-in Fort Greene, Brooklyn-at which applications for D-SNAP were to be accepted for seven days; a second satellite site in Staten Island accepted applications only part-time for four days. See PD #12-32-ELI.
16. The submission made to Defendant USDA to operate the HRA D-SNAP program did not mention any accommodations designed to specifically address the needs of individuals with disabilities.
17. In the regular SNAP program, individuals have the opportunity to apply in-person for SNAP benefits at one of more than twenty HRA offices, and through a network of community based organizations.
18. In the regular SNAP program, individuals with disabilities may also apply for benefits online, by phone, by fax, or through the mail.
19. By severely limiting the number of physical D-SNAP application sites to only two sites, and failing to provide the types of accommodations that are available to persons with disabilities seeking to apply for SNAP benefits, the HRA D-SNAP program failed to provide
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reasonable accommodations to individuals with disabilities who wished to apply for the program, thereby denying many of them access to much-needed benefits.
20. Plaintiffs, on behalf of persons with disabilities who are eligible to apply for DSNAP, bring this class action challenging Defendants' failure to consider, plan for, and address the needs of persons with disabilities by subjecting them to an inflexible in-person application requirement under the HRA D-SNAP program, which was exacerbated by the remote location of the application site(s), the very short and narrow time frame for applying, and the lack of outreach reasonably calculated to inform potentially eligible persons with disabilities about the program.
21. Plaintiffs seek an injunction requiring Defendants to: (a) accommodate all class members by allowing them alternatives to the in-person requirement, including but not limited to telephone, mail, internet, facsimile, or authorized representatives who are not themselves required to attest to the truth of an application! and when these methods are not viable, home visits, and extend the D-SNAP application period so that all class members may have an equivalent period of time to apply for D-SNAP once reasonable accommodations are implemented; or, in the alternative, allow all class members the opportunity to apply for and obtain D-SNAP benefits retroactively; or otherwise compensate all class members with equivalent SNAP benefits or cash payments; and (b) address the foreseeable needs of persons with disabilities in planning any future D-SNAP programs and provide reasonable
1 Although authorized representatives are allowed for the in-person requirement under D-SNAP for those who are not current recipients of SNAP and reside in the covered zip codes, the authorized representative must be designated in writing by an adult member of the applying household, and must be very knowledgeable about the applicant household's circumstances. The authorized representatives must also certifY that the information in the application is both complete and accurate and, if inaccurate, can face criminal prosecution and/or disqualification of benefits. Therefore, Plaintiff and class members are not able to get authorized representatives to apply on their behalf. See PD #12-32-ELI.
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accommodations in the application proceSses that may be required in such programs by: (i) adopting policies, procedures, rules, regulations or guidance that would ensure that people with disabilities have a meaningful and equivalent access to any future D-SNAP programs, including allowing reasonable accommodations such as telephone, mail, internet, facsimile or authorized representatives who are not required to attest to the truth of any application; and (ii) ensuring that individuals with disabilities are not subjected to any form of disability-based discrimination, whether intentional or through the disparate impact on people with disabilities of facially neutral rules, policies and procedures.
JURISDICTION 22. This Court has subject matter jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343(a)(3) and (4). The action arises under the ADA, 42 U.S.C. § 12131 et seq., Section 504 of the Rehabilitation Act of 1973,29 U.S.C. § 794 et seq., and the Food Stamp Act, 7 U.S.C. § 2020. 23. This Court has supplemental jurisdiction under 28 U.S.C. § 1367 over Plaintiffs' claims against the CITY DEFENDANTS under the New York State and local laws prohibiting disability discrimination. 24. Venue properly lies in this district pursuant to 28 U.S.C. § 1391(b).
PARTIES Plaintiff ALECHEA TONEY-DICK
25. Plaintiff ALECHEA TONEY-DICK lives in Arverne in the Far Rockaway section of Queens, zip code 11692, with her husband, who works full-time, and her 14-year-old son. She suffers from disabilities within the meaning the ADA and uses a wheelchair due to her
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impairments. She is not a current recipient of SNAP benefits, and was not at the time of Hurricane Sandy, but she wanted to apply for D-SNAP benefits. At the time of the original complaint, Plaintiff Toney-Dick believed that she was eligible for $526 in D-SNAP benefits. However, due to her disabilities, she could not travel to the closest D-SNAP application site, which is more than 90 minutes away from her home by public transportation to apply for the program. Plaintiff X.T.
26. PlaintiffX.T. lives in the Lower East Side of Manhattan, zip code 10002, with her four children. She suffers from disabilities within the meaning of the ADA and requires the use of oxygen and 24-hour intravenous medications for treatment of her severe respiratory impairments. At the time of the original complaint, Ms. X.T. believed that she was eligible for $793 in D-SNAP benefits. She wanted to apply for D-SNAP benefits for her family, but was unable to do so because she is unable to travel alone and her home health aide was unable to travel with her. She had no family members or friends who could apply for her. She would like to apply for D-SNAP benefits by using the reasonable accommodations of applying for these benefits via email or online. Plaintiff RENEE MOORE
27. Plaintiff Renee Moore resides in Far Rockaway, zip code 11691, with her 17year-old son and 4-year-old granddaughter. She suffers from asthma, two dislocated discs and nerve damage in her legs, cardiac problems and high blood pressure and is disabled within the meaning ofthe ADA. Although she and her son are current recipients of SNAP benefits, her young granddaughter did not receive SNAP benefits at the time of the original complaint. Ms.
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Moore wanted to apply for D-SNAP benefits for her granddaughter but was unable to do so because she is unable to travel without significant difficulty, and she does not have anyone who can apply on her behalf. Ms. Moore would like to apply for D-SNAP benefits by using the reasonable accommodations of applying for these benefits via email, fax or online. Plaintiff SHERRY HANAN
28. Plaintiff Sherry Hanan resides in the Belle Harbor area of the Rockaways Peninsula with her 80-year-old father before their home was severely damaged by Hurricane Sandy. She and her father were evacuated after the storm. Ms. Hanan was living in a hotel for several months before finally finding temporary housing in the Rockaways, where she currently resides. She suffers from seizure disorders, rheumatoid arthritis, depression and other impairments. She is disabled within the meaning of the ADA. She and her father have incurred thousands of dollars in expenses as a result of Hurricane Sandy. Ms. Hanan wanted to apply for D-SNAP benefits but has been unable to do so because of her disabilities. Ms. Hanan can apply for the program if she is provided an accommodation to do so via fax, online, over the telephone or any combination of the three, or a home visit if necessary. Defendants
29. Defendant ROBERT DOAR is the Commissioner ofHRA, the executive agency for the City of New York responsible for administering D-SNAP for New York City residents and complying with federal and state laws and regulations relating to SNAP benefits.
30. Defendant NEW YORK CITY HUMAN RESOURCES ADMINISTRAnON is the executive agency responsible for the administration of the D-SNAP and SNAP programs in New York City.
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31. Defendant KRISTIN PROUD is the Acting Commissioner of OTDA, the executive agency of the State of New York responsible for supervising SNAP and D-SNAP in New York State, complying with federal law and regulations with respect to SNAP and D-SNAP benefits, and assuring that the applicable state and local social service agencies, including HRA, comply with federal and state law and regulations.
32. Defendant NEW YORK STATE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE is the state agency responsible for administering and supervising SNAP and D-SNAP in New York State, complying with federal law and regulations with respect to SNAP and D-SNAP benefits, and assuring that the applicable state and local social service agencies, including HRA, comply with federal and state law and regulations.
33. Defendant TOM VILSACK is the Secretary of USDA, the federal executive agency for the administration of the SNAP and D-SNAP programs.
34. Defendant UNITED STATES DEPARTMENT OF AGRICULTURE is the federal executive agency responsible for administering and supervising the SNAP and D-SNAP programs.
CLASS ACTION ALLEGATIONS 35. Plaintiffs bring this action pursuant to Rule 23(a) and 23(b)(1) and Rule 23(b)(2) ofthe Federal Rules of Civil Procedure on their own behalf and on behalf of all others similarly situated. 36. The plaintiff class consists of all individuals in New York City who (a) have a physical or mental impairment that substantially limits one or more major life activities within the meaning of the ADA or have a record of such an impairment, (b) are eligible to apply for D-
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SNAP benefits, (c) reside in the covered zip codes for the HRA D-SNAP program; and (d) need reasonable accommodations to enable them to apply for D-SNAP benefits.
37. The class is so numerous that joinder of all members is impracticable. 38. Defendants OTDA and HRA estimated that there would be up to 30,000 new applicants for D-SNAP. 39. Upon information and belief, less than 6,000 households had applied for the HRA D-SNAP program as of December 18, 2012, when the program application period was closed. 40. Upon information and belief, data from the United States Census American Community Survey conducted in 2011 indicate more than 840,000 non-institutionalized New York City residents have a disability. This number represents more than 10% of the New York City population. 41. Upon information and belief, many individuals in the anticipated D-SNAP eligible applicant pool are persons with disabilities as that term is defined in the Americans with Disabilities Act, who are either homebound or whose physical or mental impairments are such that they need some form of reasonable accommodation in the D-SNAP application process. 42. The rules, policies, procedures, and methods of administration that HRA used in the D-SNAP program and that form the factual basis for this complaint are common to all members of the class. The relief sought will apply to all ofthem. 43. Questions of law common to the members of the class include whether Defendants, individually or collectively, violated the ADA, Section 504 ofthe Rehabilitation Act of 1973, the Food Stamp Act, and New York State and City statutes and regulations, by failing to provide reasonable accommodations to those new applicants with disabilities who are subject to
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the inflexible in-person requirement of D-SNAP. 44. The claims of the named plaintiffs are typical of the claims of the entire class.
Defendants' violations of the laws as alleged herein have deprived Plaintiffs and members of the class of the opportunity to apply for D-SNAP benefits. Therefore, all class members will suffer the same or similar injuries for the purposes of the injunctive and declaratory relief sought.
45. The named plaintiffs are capable of fairly and adequately representing the class and protecting its interests. Counsel for Plaintiffs are the Legal Aid Society, a legal services organization with substantial experience in class action litigation on behalf of persons with disabilities and persons eligible for public assistance, and Gibson, Dunn & Crutcher LLP, one of the nation's most highly-regarded litigation firms, whose lawyers are familiar with federal class actions and other complex litigation. Counsel is aware of no conflicts among members of the proposed plaintiff class.
46. The prosecution of separate actions by individual members of the class would create a risk of inconsistent and varying adjudications that would establish incompatible standards of conduct for Defendants.
47. The prosecution of separate actions by individual members of the class would also create a risk of adjudications with respect to individual members which would, as a practical matter, substantially impair the ability of other members to protect their interests.
48. Defendants have acted or refused to act on grounds generally applicable to the class, making appropriate injunctive and declaratory relief with respect to the class as a whole.
STATUTORY AND REGULATORY FRAMEWORK 49. The Food Stamp Act establishes the Supplemental Nutrition Assistance Program,
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fonnerly known as the Food Stamp Program, which is a federally-funded program administered on the federal level by the FEDERAL DEFENDANTS through the USDA Food and Nutrition Service. SNAP is state-supervised by the STATE DEFENDANTS and administered in New York City by the CITY DEFENDANTS.
50. USDA has the authority to establish D-SNAP pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Pub. Law No. 93-288,42 U.S.C. § 5179, and the Food Stamp Act and accompanying regulations, 7 U.S.C. § 2014(h), 7 C.F.R. § 280.
51. D-SNAP is a public benefits program that provides one month of food assistance benefits to eligible individuals affected by a natural disaster. To be eligible for D-SNAP, a household must live in the identified disaster area, have been affected by the disaster, and meet certain D-SNAP eligibility criteria.
52. In New York State, the standing practice has been for a D-SNAP program to be initiated and implemented by the local social services district. Thus, in order to implement a DSNAP, HRA must make a request to OTDA setting forth a plan to operate a D-SNAP program; OTDA submits the plan for approval by the Food and Nutrition Service, a division of the USDA. Once approved, HRA administers the program.
53. On October 30,2012, President Obama declared New York a major disaster area due to Hurricane Sandy.
54. New York City officials have estimated that Hurricane Sandy inflicted nearly $20 billion in economic damages to city residents, businesses, and local government agencies.
55. On December 7, 2012, HRA announced that New York City was approved for DSNAP in response to Hurricane Sandy, and that an HRA D-SNAP program would begin in just
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five (5) days, and run for a total of seven (7) days from December 12 to 18, 2012. 56. Eligibility for the HRA D-SNAP program was limited to residents often (10)
complete zip codes located in the Coney Island (11224 and 11235) and Red Hook (11231) areas in the Brooklyn; in the Far Rockaway area of Queens (11691, 11693, 11694, and 1167), the southeastern shore ofthe Staten Island (10306) and in lower Manhattan (10002) and two partial zip codes: 11229 in Coney Island and 10305 in Staten Island. See PD #12-32-ELI.
57. The HRA D-SNAP program required, inter alia, that individuals who were not current recipients of SNAP benefits who reside in the zip codes covered by D-SNAP apply for D-SNAP benefits in person during the limited seven day application period from December 12 to 18,2012. See PD #12-32-ELI.
58. There was only one main site available for persons to apply for the D-SNAP program, an office located in Fort Greene, Brooklyn. A satellite site in Staten Island at a high school was open on a part-time basis from December 14 to 17. See PD #12-32-ELI.
59. Thousands of individuals who are eligible to apply for D-SNAP reside outside of Brooklyn and Staten Island, particularly in Far Rockaway. See PD #12-32-ELI.
60. By way of contrast, in the D-SNAP program administered in New Jersey for victims of Hurricane Sandy, there were over 70 application sites, with some individual boroughs having between seven and ten sites, utilizing senior centers, libraries, firehouses, shelters, social services offices and outreach sites.
61. In neighboring Westchester County, D-SNAP program applications were accepted at five different sites.
62. Similar flexibility has been evident in prior, comparable storms. Upon
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infonnation and belief, following Hurricane Isaac, every affected Louisiana parish provided at least one site for D-SNAP applications. And after Hurricane Ike, Austin, Texas alone provided three application sites.
63. Upon infonnation and belief, Defendants had sufficient resources and were otherwise able to accept D-SNAP applications at sites in addition to the two at which they accepted applications for the HRA D-SNAP program.
64. Defendants' administration of the D-SNAP program violates Section 504 of the Rehabilitation Act of 1973,29 U.S.C. § 794 et seq. In addition, the STATE DEFENDANTS and CITY DEFENDANTS' administration of the D-SNAP program violates the ADA, 42 U.S.C. § 12131 et seq., and the Food Stamp Act, 7 U.S.C. § 2020, as well as its implementing regulations; and the CITY DEFENDANTS' administration of the D-SNAP program violates New York State and City Human Rights law, and New York State Social Services Law § 331, as it fails to reasonably accommodate those with disabilities who are, were, or will be required to apply for D-SNAP in person at the D-SNAP application sites.
FACTUAL ALLEGATIONS COMMON TO THE PLAINTIFF CLASS 65. Defendants have failed to consider and address the different needs of individuals with disabilities in planning, advertising, implementing and administering the D-SNAP program. 66. Defendants have not made any reasonable accommodations for those individuals with disabilities, including homebound clients, to apply for D-SNAP where they reside in the covered zip codes and are not current recipients of SNAP, in violation of federal, state, and city laws. 67. Upon infonnation and belief, Defendants did not consult with any community-
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based organizations familiar with the needs of people with disabilities in formulating plans for the HRA D-SNAP program.
68. In the regular SNAP program operated by Defendants, individuals with disabilities interested in applying for the program are accommodated by an application process that utilizes telephones, faxes, online submissions, mail and home visits where necessary for individuals to apply for and access SNAP benefits.
69. None of these accommodations provided for in the regular SNAP program-the use of telephones, faxes, online submissions, mail, and home visits where necessary to facilitate applications-had been incorporated in the HRA D-SNAP program to make the application process and program benefits accessible to individuals with disabilities. The application process lacked these accommodations despite the fact that the HRA D-SNAP program had communication networks, such as telephones and faxes, established to handle other stages ofthe application process, such as in addressing challenges to rejected applications.
70. Based on their experience with the regular SNAP program, the available demographic data and information with respect to the extent to which individuals are currently receiving or eligible for home visits from the agency, home care health services, and services from Adult Protective Services and HIV/AIDS Services Administration due to the severity of their disabilities, Defendants knew, or should have known, that the plan that was submitted for the HRA D-SNAP program would not meet the needs of many otherwise eligible individuals.
71. As a result of Defendants' failure to address the specific needs of individuals with disabilities in planning the D-SNAP program-including the decision as to where applications would be accepted-individuals with disabilities in New York City who are in need of and
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eligible for D-SNAP benefits are discriminated against and deprived of the opportunity to access such benefits.
72. Reasonable modifications in Defendants' policies, practices, procedures, and methods of administration are necessary to enable Plaintiffs and class members to apply for and obtain D-SNAP benefits.
73. Reasonable modifications in Defendant's policies, practices, and procedures are necessary to afford Plaintiffs and class members an opportunity to apply for and obtain D-SNAP benefits on terms equal to and as effective as those enjoyed by non-disabled persons.
74. Defendants have failed to consider the rights of qualified individuals with disabilities, their rights to receive benefits and services pursuant to Section 504 of the Rehabilitation Act and the ADA, and how to provide reasonable accommodations to such individuals under D-SNAP.
75. Defendants do not have effective procedures in place to accept and act upon requests for reasonable accommodations and to ensure that any accommodations made as a result of such requests are carried out under D-SNAP.
76. HRA does not have systems in place to accommodate a travel hardship for those that have difficulty or are unable to travel to the D-SNAP application sites.
77. Travel times by public transportation to these D-SNAP application sites range from approximately 30 minutes to almost an hour and a half, depending on where the individual resides in the covered zip codes; for those in the borough of Queens, the travel time always exceeds one hour. For those that need wheelchair accessibility, the travel times are even longer.
78. After Hurricane Sandy, there was no subway to or from Far Rockaway; there was
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only an MTA shuttle bus to a station where the elevators were not working due to the storm. Thus, that station was inaccessible to many people with disabilities.
79. An hourly shuttle bus to and from one location in Far Rockaway did little to fix this problem. The large parking lot used for this purpose lacked signage indicating where to find and board the shuttle, and it was unclear how disabled applicants would be accommodated when they arrived at the sites. Moreover, these shuttles were not a reasonable accommodation for people with disabilities, who are unable to leave their home without risking their health and safety.
80. For many individuals with disabilities eligible to apply for D-SNAP, the AccessA-Ride program, which is available only to those who have previously applied and been approved, was unavailable and not a reasonable accommodation due to the disrupting impact of Hurricane Sandy, the time frame to submit a D-SNAP application, and unpredictable scheduling of transportation to and from an application site.
81. Furthermore, individuals with disabilities who have travel limitations experience greater pain and discomfort and longer time traveling to the D-SNAP application sites.
82. To apply for the HRA D-SNAP program through an authorized representative, an individual with a disability must be willing to disclose very personal and sensitive information, including, for example: a social security number, detailed financial information, including any income from any source, as well as bank account information, mortgages, liquid assets, and very personal expenses, and provide documentation for the same to the authorized representative.
83. Upon information and belief, many individuals with disabilities, including but not limited to individuals who suffer from psychiatric disabilities and individuals who have
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legitimate concerns about identity theft and the loss or mishandling of very sensitive and personal information, are often advised against, and are extremely reluctant in, providing such personal information to third parties.
84. An individual agreeing to serve as an authorized representative for a person with a disability has to be willing to attest to the truth of all statements made in an application under penalty of perjury and, during the application process, may be asked to answer specific questions about documentation or the lack thereof for any claimed expense or other item in the application.
85. The STATE DEFENDANTS and FEDERAL DEFENDANTS were aware of the fact that the plans for implementing the HRA D-SNAP program did not include accommodations such as the ability to apply via home visit, phone, mail, fax, or a combination thereof, when they submitted and approved, respectively, the plans for the HRA D-SNAP program.
86. Defendants did not design or implement a plan that was reasonably calculated to inform individuals with disabilities of their right to apply for the D-SNAP program such that they would be informed of, and able to apply, within the within the extremely narrow time frames during which applications were accepted.
87. Upon information and belief, Defendants had and currently have adequate resources to provide reasonable accommodations to those unable to travel to D-SNAP application sites, including allowing applicants to apply online, by phone, by fax, or through the mail, and conducting home visits when necessary.
88. Upon information and belief, Defendants could, through use of existing databases, identify hundreds if not thousands of individuals with disabilities who may be eligible for DSNAP benefits.
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89. Upon infonnation and belief, many individuals with disabilities residing in the twelve covered zip codes have not even heard about the D-SNAP program, or learned about it only after the program application period was closed.
90. Many individuals with disabilities did not have time to secure an authorized representative, assuming they were willing to apply through such a person.
91. Upon infonnation and belief, many individuals with disabilities live in relative isolation, or have physical or mental impainnents that limit their ability to communicate with and/or interact with others, such that they did not have an opportunity to find-in a matter of approximately one week-a person willing to give up a considerable part of a day and to undertake the responsibilities associated with the position of an authorized representative without any compensation.
92. HRA estimated that, on average, each household that found eligible for its DSNAP program would receive approximately $432.
93. As a result of the cumulative effect of Defendants' actions and inactions, many would-be applicants with disabilities have been denied access to much-needed emergency benefits through the D-SNAP program to help feed themselves and their families.
94. Defendant USDA has, in the past, approved applications to extend, expand, or renew a D-SNAP program, including at least one such extension in New York State upon an application submitted by Defendant OTDA. In November 2012, Defendant USDA approved a plan whereby residents of West Virginia were allowed to apply for D-SNAP benefits that were linked to a disaster that had occurred in June 2012.
95. Upon infonnation and belief, Defendants have existing procedures and policies
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established within SNAP and similar aid programs to extend deadlines and or otherwise allow individuals to apply for benefits retroactively, after deadlines have already passed, when deadlines were missed for good cause, such as a medical condition, disability, or other exigent circumstances.
96. Upon information and belief, Defendants did not and have not advised persons with disabilities that they may apply for D-SNAP if they had a disability-related reason that impaired their ability to submit and complete an application between December 12 and 18,2012.
97. Upon information and belief there are no statutory or regulatory impediments that would prevent the Defendants from devising a plan to provide individuals with disabilities who were not able to apply for the HRA D-SNAP program between December 12-18,2012 due to disability-related reasons, to do so now, as a reasonable accommodation.
98. Upon information and belief, Defendants were and currently are able to extend, expand, or renew HRA's D-SNAP program to allow Plaintiffs and class members an opportunity to apply for D-SNAP benefits for which they were eligible but unable to receive in the wake of Hurricane Sandy.
99. Defendants' policies, practices and procedures are likely to create obstacles and barriers for people with disabilities to apply for or benefit from any future D-SNAP program.
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FACTS CONCERNING THE NAMED PLAINTIFFS Alechea Toney-Dick
100. Alechea Toney-Dick is a 42-year-old wife and mother who resides in Arveme in the Far Rockaway area of Queens, with her husband and her 14-year-old son. She is currently not a SNAP recipient.
101. Alechea Toney-Dick suffers from multiple physical impairments, including mUltiple sclerosis, hyperthyroidism, chronic arthritis, and hip problems, resulting in severe mobility issues and chronic weakness and fatigue. She also suffers from chronic obstructive pulmonary disease, which makes it very difficult for her to breathe.
102. As a result of her physical conditions, Alechea Toney-Dick uses a wheelchair to move around her home. If she needs to go out, she is unable to do so unless her husband carries her down the stairs. Therefore, she cannot leave her home without assistance.
103. Alechea Toney-Dick's husband works full-time at North Shore Long Island Jewish Hospital from 4:30 a.m. to approximately 4:15 p.m. every weekday. Her 14-year-old son attends school full-time, but, due to school damage from Hurricane Sandy, was being bussed to another school in Queens following the hurricane.
104. As a result of Hurricane Sandy, Alechea Toney-Dick's home was severely damaged: flooding ofthe first floor; damage to the stairs leading to the second floor; leaks from the roof and ceilings; damage to the floors; cracks to the foundation and windows; personal damage to her computer and personal belongings; and loss of food.
105. She and her family also had to pay out-of-pocket to stay three nights at a hotel, because they did not have electricity, heat or hot water in the home.
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106. Additional food assistance would benefit her and her family greatly as they have had to spend money for out-of-pocket for expenses incurred from the disaster.
107. Alechea Toney-Dick is eligible to apply for D-SNAP; however, the closest DSNAP application site is more than an hour and a half away by public transportation. Furthermore, due to her disabilities, she is unable to travel to the site and does not have anyone that can apply on her behalf. Her husband works full-time and it is difficult for him to get off from work.
108. Due to Alechea Toney-Dick's disabilities, she requires appropriate reasonable modifications to apply for and access HRA's D-SNAP program, including applying for the program by mail, fax, or telephone, and to have equal access to D-SNAP benefits. Ms. X.T.
109. Ms. X.T.lives in the Lower East Side of Manhattan, zip code 10002, with her two daughters, ages 11 and 16, and her two sons, ages 9 and 10. Ms. X. T. receives Supplemental Security Income ("SSI") disability benefits and three of her children also receive SSI benefits because they are disabled. In total, the family receives $2,884 in SSI benefits per month. The family receives no other income.
110. Ms. X.T. suffers from disabilities within the meaning of the ADA. She suffers from Acute Pulmonary Hypertension which (among other things) affects her ability to breathe and her ability to stand and sit for long periods. She is treated on intravenous medications 24 hours per day. She cannot travel alone and when she leaves her home must carry her IV in a medical pack with her. She also uses oxygen when necessary and has a regular oxygen tank in her home and a portable oxygen tank to take with her when needed when she leaves her home.
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She has a home health aide who assists her with her care and her children receive 24-hour home making services because of the precarious nature of their health and Ms. X.T. 's health.
111. Although her household has received SNAP benefits in the past, her family did not receive any SNAP benefits in the month of November. Ms. X.T received SNAP benefits in the amount of$lO on December 15,2012 and $13 on December 18,2012.
112. Because she did not receive SNAP benefits in the month of November, her family is not eligible to receive the one-time D-SNAP supplement which Defendants issued via electronic payment to SNAP households who received regular SNAP benefits in November. She can only receive D-SNAP benefits if she applies for them.
113. Ms. X.T. wanted to apply for D-SNAP benefits, but she was unable to do so because she is unable to travel alone and her home health aide was unable to travel with her to apply. She had no family members or friends who could apply for her.
114. Ms. X.T. has more than $100 in disaster-related expenses. After Hurricane Sandy hit, she lost power, so she struggled to keep her IV medication cold by using ice packs. After a day, she could no longer sustain this and was forced to leave her home with her children and stay with a friend in Brooklyn who had power. She had to buy clothes for her children and pay for restaurant meals. She also had to pay $50 for a cab ride back to her apartment when power had returned.
115. Ms. X.T. has access to a laptop computer and has applied for SNAP benefits online in the past. She could have applied for D-SNAP benefits online and submitted scanned copies of any documents needed to go with her application if these reasonable accommodations were permitted.
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116. Ms. X.T. believes that she is likely eligible for $793 in D-SNAP benefits. She would like to apply for D-SNAP benefits by using the reasonable accommodations of applying for these benefits via email or online. Renee Moore
117. Plaintiff Renee Moore resides in Far Rockaway, New York, zip code 11691, with her 17-year-old son and 4-year-old granddaughter. She receives disability benefits from the Social Security Administration of $721 per month, and $100 per month of child support passthrough payment from HRA for her son.
118. She and her son are current recipients of SNAP benefits. However, her granddaughter, who is a member of her household, does not receive SNAP benefits. Ms. Moore was in the process of adding her granddaughter to the household SNAP budget and had a scheduled appointment with the HRA center on October 31,2012. However, due to Hurricane Sandy, she was unable to attend the appointment and her granddaughter was not added to the SNAP budget.
119. Although she and her son are eligible to receive a one-time D-SNAP supplemental parity payment, Ms. Moore would be required to apply in-person at aD-SNAP application site for D-SNAP benefits for her granddaughter.
120. Ms. Moore suffers from multiple disabilities within the meaning of the ADA. She has two dislocated discs in her lower lumbar and three damaged nerves in the left side of her leg, causing her severe pain when walking. She cannot stand up for long periods of time and uses a cane to move around the apartment. She also takes prescription pain medication approximately two to three times a day due to the pain in her legs. Ms. Moore also suffers from asthma, heart-
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Case 1:12-cv-09162-KBF Document 41 Filed 03/29/13 Page 25 of 35
related problems, and high blood pressure. She takes medications for all of these medical conditions, which causes her to be drowsy and unable to travel.
121. Ms. Moore wanted to apply for D-SNAP benefits for her granddaughter but was unable to do so because she is unable to travel without significant difficultly, and she does not have anyone that can apply on her behalf.
122. Ms. Moore has more than $100 in disaster-related expenses after Hurricane Sandy, including extensive damage to her car and window cracks due to a fallen tree branch. She also had to eat out regularly because she had no electricity, heat or hot water in her apartment.
123. As an applicant who had not yet been granted SNAP benefits at the time of the original complaint, Ms. Moore's grandchild is eligible for D-SNAP. Her D-SNAP benefits could add to the household, which has experienced so many disaster-related expenses during that period.
124. Ms. Moore could have applied for D-SNAP benefits for her granddaughter online, by email or by fax if these reasonable accommodations were permitted.
125. Ms. Moore would like to apply for D-SNAP benefits by using the reasonable accommodations of applying for these benefits via email, fax or online. Sherry Hanan
126. Sherry Hanan is a 50-year-old single woman who resides in the Belle Harbor area of the Rockaways Peninsula with her 80-year-old father. She is not currently a SNAP recipient.
127. Ms. Hanan's house was severely damaged in Hurricane Sandy. As a result, Ms. Hanan and her father were evacuated, and they lived in a hotel following the storm.
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Case 1:12-cv-09162-KBF Document 41 Filed 03/29/13 Page 26 of 35
128. Ms. Hanan suffers from seizure disorders related to brain surgery. She has rheumatoid arthritis. Ms. Hanan has also survived both breast cancer and melanoma. She also has chronic irritable bowel syndrome and gastroesophageal reflux disease. Ms. Hanan also suffers from depression.
129. The combined effect of Ms. Hanan's physical and mental impairments makes it extremely difficult for her to function in crowded situations. She is particularly at risk of seizures in crowded environments and to flashing lights, such as those related to ambulances, police and fire department vehicles.
130. For example, on one occasion Ms. Hanan suffered a seizure in a crowded Social Security office. She also had a seizure after a fire at a midtown hotel to which she had been evacuated after the storm.
131. Ms. Hanan and her father have incurred thousands of dollars in expenses as a result of Hurricane Sandy.
132. Ms. Hanan and her father have been living on less than $3,000 in income from Social Security benefits and her father's pension since the storm hit. Ms. Hanan wanted to apply for D-SNAP benefits but has been unable to do so because of her disabilities. Ms. Hanan can apply for the program if she is provided an accommodation to do so via fax, online, over the telephone or any combination of the three, or a home visit if necessary.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF VIOLATION OF SECTION 504 OF THE REHABILITATION ACT OF 1973 (29 U.S.C. § 794, ET SEQ.) BY ALL DEFENDANTS 133. Section 504 ofthe Rehabilitation Act of 1973,29 U.S.C. § 794, and its
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Case 1:12-cv-09162-KBF Document 41 Filed 03/29/13 Page 27 of 35
implementing regulations, prohibits discrimination against persons with disabilities by federal agencies and recipients of federal funding.
134. Defendant USDA is a federal agency within the meaning ofthe Rehabilitation Act.
135. The STATE DEFENDANTS and CITY DEFENDANTS are "recipient[s]" of "federal financial assistance," as defined by Section 504 of the Rehabilitation Act of 1973 and by implementing regulations, thereby rendering them subject to Section 504. 29 U.S.C. § 794(b)(I); 28 C.F.R. § 41.3(d)-(e); 45 C.F.R. § 84.3(f)-(h); 7 C.F.R. § 15b.3(f)-(g).
136. Each plaintiff and member of the class has at least one "disability," as that term is used in Section 504 of the Rehabilitation Act. Like the ADA, Section 504 defines a disability as "a physical or mental impairment that substantially limits one or more of major life activities of such individual." 29 U.S.C. § 705(20)(B).
137. Each plaintiff and member of the plaintiff class is a "handicapped person," as that term is used in regulations implementing Section 504. Section 504 regulations define a handicap as a physical or mental impairment that substantially limits one or more of the major life activities of such individual. 28 C.F.R. § 41.31(a); 45 C.F.R. § 84.3G), (1); 7 C.F. R. § 15b.3(i).
138. Each plaintiff and member of the class meets the essential eligibility requirements for the receipt of services and is therefore a "qualified handicapped person," as that term is defined in regulations implementing Section 504. 28 C.F.R. § 41.32; 45 C.F.R. § 84.3(1); 7 C.F.R. § 15b.3(n)(4).
139. Defendants discriminated and continue to discriminate against Plaintiffs and members ofthe class in violation of29 U.S.C. § 794(a) and its implementing regulations, 28
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C.F.R. § 41.51; 45 C.F.R. § 84.4, 7 C.F.R. § 15b.4, in the following ways: (A) Defendants discriminated and continue to discriminate against Plaintiffs and members of the class by failing to provide reasonable modifications necessary for them to apply for, successfully obtain, and maintain eligibility for D-SNAP benefits, in violation of29 U.S.C. § 794(a). (B) Defendants discriminated and continue to discriminate against Plaintiffs and members of the class by failing to (i) afford them such benefits in a manner that is equal to others; and (ii) provide them with benefits in a manner that is as effective in affording equal opportunity to obtain the same result, gain the same benefit and reach the same level of achievement as that provided to others, in violation of 28 C.F.R. § 41.51 (b)(1)(ii)-(iii); 45 C.F.R. §§ 84.4(b)(2) & 84.4(b)(1)(ii)-(iii); 7 C.F.R. § 15b.4(b)(1 )(ii)-(iii). (C) Defendants discriminated and continue to discriminate against Plaintiffs and members of the class by denying them access to benefits, in violation of28 C.F.R. §§ 41.51 (a) & 41.51(b)(I)(i)-(ii), (vii); 45 C.F.R. §§ 84.4(a) & 84.4(b)(1)(I)-(ii), (vii); 7 C.F.R. §§ 15b.4(a) & 15b.4(b)(I)(i)-(ii), (vii).
140. Defendants' conduct constitutes an ongoing and continuous violation of Section 504 of the Rehabilitation Act and unless restrained from doing so, Defendants will continue to violate said law. This conduct, unless enjoined, will continue to inflict injuries for which Plaintiffs have no adequate remedy at law. Plaintiffs will suffer irreparable harm in that they will continue to be discriminated against and denied access to D-SNAP benefits.
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SECOND CLAIM FOR RELIEF VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT, 42 U.S.c. § 12131, ET SEQ., BY THE STATE AND CITY DEFENDANTS 141. Title II of the ADA, 42 U.S.C. § 12132, prohibits a public entity from excluding a person with a disability from participating in or denying the benefits of a program of the public entity to a person with a disability or otherwise discriminating against a person on the basis of disability . 142. The ADA defines "disability" as a physical or mental impairment that substantially limits one or more of the major life activities of such individual; having a record of such impairment; or being regarded as having such impairment, as defined under the ADA at 42 u.S.C. § 12102(2) and U.S. Department of Justice ("DOJ") implementing regulations, 28 C.F.R. § 35.104. 143. Each plaintiff and member of the class has at least one "disability" within the meaning of the ADA and implementing regulations. 144. A "public entity" includes state and local governments, their agencies, and their instrumentalities, as defined under the ADA, 42 U.S.C. § 12131(1). 145. The CITY DEFENDANTS and STATE DEFENDANTS are public entities within the meaning of 42 U.S.C. § 12131(1) and 28 C.F.R. § 35.104. 146. Each plaintiff and member of the class is a "qualified individual with a disability" as defined under the ADA, 42 U.S.C. § 12131(2) and 28 C.F.R. § 35.104, because each person is an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the
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Case 1:12-cv-09162-KBF Document 41 Filed 03/29/13 Page 30 of 35
receipt of services or the participation in programs or activities provided by Defendants. 147. By failing to plan to meet the illlique needs of persons with disabilities during a
disaster, Defendants discriminated and continue to discriminate against Plaintiffs and members ofthe class in violation of 42 U.S.c. §§ 12132 and the DOl's implementing regulations, 28 C.F.R. §§ 35.130, in the following ways:
(A) Defendants discriminated and continue to discriminate against Plaintiffs and members of the class by providing benefits in an unequal manner which denies or limits the ability of disabled person to enjoy the benefits as others can, in violation of28 C.F.R. § 35.130(b)(1).
(B) Defendants discriminated and continue to discriminate against Plaintiffs and members of the class by selecting sites that have the effect of excluding individuals with disabilities from, denying the benefits of, or otherwise subjecting them to discrimination, in violation of28 C.F.R. §§ 35. 130(b)(4).
(C) Defendants discriminated and continue to discriminate against Plaintiffs and members of the class by failing to provide reasonable modifications necessary for them to apply for, successfully obtain, and maintain eligibility for benefits, in violation of 42 U.S.C. § 12112(b)(5)(A), 28 C.F.R. §§ 35. 130(b)(7), and 28 C.F.R. §§ 35. 130(b)(4).
148. Defendants' conduct constitutes an ongoing and continuous violation ofthe ADA and unless restrained from doing so, Defendants will continue to violate said law. This conduct, unless enjoined, will continue to inflict injuries for which Plaintiffs have no adequate remedy at
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Case 1:12-cv-09162-KBF Document 41 Filed 03/29/13 Page 31 of 35
law. Plaintiffs will suffer irreparable harm in that they will continue to be discriminated against and denied access to D-SNAP benefits.
THIRD CLAIM FOR RELIEF VIOLATION OF THE FOOD STAMP ACT BY THE STATE DEFENDANTS AND THE CITY DEFENDANTS 149. The STATE DEFENDANTS, acting under color of state law, are responsible for the administration of Food Stamps/SNAP in the State of New York. 150. The CITY DEFENDANTS are responsible for the administration of Food Stamps/SNAP in the City of New York. 151. 7 U.S.C. § 2020(e)(11) of the Food Stamp Act provides that a state agency, in designating a plan to for SNAP benefits during a disaster, shall establish "application procedures to reduce hardship and inconvenience." 152. 7 U.S.C. § 2020(e)(2)(B)(i) of the Food Stamp Act provides that a state agency "shall establish procedures" that "provide timely, accurate, and fair service to applicants for, and participants in, the food stamp program." 153. Defendants have failed to establish said procedures that reduce hardship and inconvenience or provide fair service to applicants with disabilities interested in applying for DSNAP benefits, which deprives Plaintiffs and members of the class their rights under the Food Stamp Act, 7 U.S.C. § 2020(e)(2)(B)(i) and (e)(11), actionable under 42 U.S.C. § 1983.
FOURTH CLAIM FOR RELIEF VIOLATIONS OF THE NEW YORK STATE HUMAN RIGHTS LAW § 296-2(a)
BY THE CITY DEFENDANTS 154. Plaintiffs and members of the class are persons with a disability within the
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Case 1:12-cv-09162-KBF Document 41 Filed 03/29/13 Page 32 of 35
meaning of N.Y. Exec. Law § 292(21). 155. Defendants subjected and continue to subject Plaintiffs and members of the class
to discrimination by refusing, withholding from or denying them accommodations, advantages, facilities or privileges because of their disabilities, in violation ofthe State Human Rights Law. N.Y. Exec. Law § 296-2(a), enforceable underN.Y. Exec. Law § 297(9).
FIFTH CLAIM FOR RELIEF VIOLATIONS OF THE NEW YORK STATE SOCIAL SERVICES LAW § 331
AND 18 N.Y.C.R.R. § 303.1(a)-(b) BY THE CITY DEFENDANTS 156. Plaintiffs and all plaintiff class members are "handicapped" within the meaning of N.Y. Soc. Servo L. § 331(3) and 18 N.Y.C.R.R. § 303.1 (a) and (b). 157. The failure of Defendants to provide reasonable modifications necessary for class members to apply for, successfully obtain, and maintain eligibility for D-SNAP benefits, discriminates against class members on the basis of their handicap in violation of their rights underN.Y. Soc. Servo Law § 331 and 18 N.Y.C.R.R. § 303.1 (a) and (b).
SIXTH CLAIM FOR RELIEF VIOLATIONS OF THE NEW YORK CITY HUMAN RIGHTS LAW
BY THE CITY DEFENDANTS 158. Defendants are "persons" subject to N.Y.C. Administrative Code § 8-107(4)(a) in that they are "providers of public accommodation" pursuant to N.Y.C. Administrative Code § 8102(9). 159. Plaintiffs and members of the class have a disability within the meaning ofN.Y.C. Administrative Code § 8-102(16). 160. Defendants discriminate against Plaintiffs in violation ofN.Y.C. Administrative
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Case 1:12-cv-09162-KBF Document 41 Filed 03/29/13 Page 33 of 35
Code § 8-107(4)(a) by refusing, withholding from or denying Plaintiffs accommodations, advantages, facilities or privileges because of their disabilities.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that this Court grant them the following relief: 161. Certify a plaintiff class pursuant to Fed. R. Civ. P. 23(a) and 23(b)(1) and (b)(2). 162. Adjudge and declare that the policies, practices, omissions and conditions described above are in violation of the rights of Plaintiffs and the class they seek to represent under the ADA, Section 504 of the Rehabilitation Act, the Food Stamp Act, the New York State and City Human Rights Law, and the New York State Social Services Law and its implementing regulations. 163. Permanently enjoin Defendants, their agents, employees and all persons acting in concert with them from discriminating against Plaintiffs and class members by requiring them to (a) accommodate all class members by allowing them alternatives to the in-person requirement, including but not limited to telephone, mail, internet, facsimile or authorized representatives who are not themselves required to attest to the truth of an application and when these methods are not viable, home visits, and extend the D-SNAP application period so that all class members may have an equivalent period of time to apply for D-SNAP once reasonable accommodations are implemented; or (b) allow all class members the opportunity to apply and obtain D-SNAP benefits retroactively; or (c) otherwise compensate all class members with equivalent SNAP benefits or cash payments. 164. Order Defendants to refrain from employing methods of administration that have the effect of discriminating against Plaintiffs and class members based on their disabilities.
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Case 1:12-cv-09162-KBF Document 41 Filed 03/29/13 Page 34 of 35

165. Order Defendants, their agents, employees and all persons acting in concert with them, to make reasonable accommodations available to Plaintiffs and class members in a manner that allows them to apply for and comply with the conditions of eligibility for D-SNAP in the current HRA D-SNAP program and any future HRA D-SNAP programs.
166. Award Plaintiffs the costs of this suit and reasonable attorneys' fees and litigation expenses.
167. Retain jurisdiction of this case until Defendants have fully complied with the orders of this Court, and there is a reasonable assurance that Defendants will continue to comply in the future.
168. Award such other and further relief as the Court deems just and proper.

Dated: New York, New York March 29,2013

Respectfully submitted,
THE LEGAL AID SOCIETY Steve Banks, Attorney-in-Charge Adriene Holder, Attorney-in-Charge, Civil Practice Area Judith Goldiner, Attorney-in-Charge, Law Reform Unit Kenneth R. Stephens, Supervising Attorney, Law Reform
Unit Susan E. WeIber, of counsel Kathleen Kelleher, of counsel Sumani Lanka, of counsel Susan Sternberg, of counsel 199 Water Street New York, New York 10038 Telephone: (212) 577-3300

Sumani Lanka
GIBSON, DUNN & CRUTCHER LLP Randy M. Mastro
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Case 1:12-cv-09162-KBF Document 41 Filed 03/29/13 Page 35 of 35 Justin Solomon Nematzadeh 200 Park Avenue New York, NY 10166-0193 Telephone: (212) 351-4000 Facsimile: (212) 351-4035
By: .~~ Randy M. astro . Attorneysfor Plaintiffs
35

 
 Case 1:12-cv-09162-KBF Document 47-1 Filed 05/13/13 Page 1 of 2

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

----------------------------------------------------------x

:

ALECHEA TONEY-DICK, X.T., RENEE :

MOORE, and SHERRY HANAN, individually :

and on behalf of others similarly situated,

:

:

Plaintiffs,

:

-against-

: :

ROBERT DOAR, in his official capacity as Commissioner of the New York City Human Resources Administration; and THE NEW YORK CITY HUMAN RESOURCES ADMINISTRATION; KRISTIN M. PROUD, in her official capacity as Acting Commissioner of the New York State Office of Temporary and Disability Assistance; and the NEW YORK STATE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE; and TOM VILSACK, in his official capacity as Secretary of the United States Department of Agriculture; and the UNITED STATES DEPARTMENT OF AGRICULTURE,

: : : : : : : : : : : : : : : :

No. 12 Civ. 9162 (KBF) (AJP) [PROPOSED] ORDER

Defendants.

:

----------------------------------------------------------x

Pursuant to Federal Rule of Civil Procedure 23, it is hereby ORDERED that a class is

certified consisting of all individuals who (a) have or had a physical or mental impairment that

substantially limits one or more major life activities within the meaning of the Americans with

Disabilities Act of 1990, as amended, 42 U.S.C. § 12101, et seq., or have a record of such an

impairment; (b) are or were eligible to apply for benefits from a New York City Human

Resources Administration (“HRA”) Disaster Supplemental Nutrition Assistance Program (“D-

SNAP”), including the D-SNAP benefits offered in response to “Superstorm Sandy”; (c) reside

Case 1:12-cv-09162-KBF Document 47-1 Filed 05/13/13 Page 2 of 2 or resided in the covered zip codes for an HRA D-SNAP program; and (d) need or needed reasonable accommodations to enable them to apply for D-SNAP benefits. New York, NY ________, 2013
_________________________________________ UNITED STATES DISTRICT JUDGE
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 Case 1:12-cv-09162-KBF Document 108 Filed 09/16/13 Page 1 of 28

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------------------)C ALECHEA TONEY-DICK, individually and on behalf of all others similarly situated, et al.,

USDC SDNY
DOCUMENT ELECTRONICALLY HLED
DDOACTE#:FlLfnSEf 162013.

Plaintiffs,

-v-

12 Civ. 9162 (KBF) 


ROBERT DOAR, in his official capacity as Commissioner of the New York City Human Resources Administration, et al.,

MEMORANDUM 
 DECISION & ORDER 


Defendants. ------------------------------------------------------------------- )C
KATHERINE B. FORREST, District Judge:

This action involves the Disaster Supplemental Nutrition Assistance

Program CD-SNAP") that was implemented in New York City following Hurricane

Sandy ("the Sandy D-SNAP Program"). Plaintiffs Alechea Toney-Dick ("Toney-

Dick"), )C.T., Renee Moore ("Moore"), and Sherry Hanan ("Hanan"), individually and

on behalf of all others similarly situated (collectively, "Plaintiffs"), allege that

Defendants Robert Doar, in his official capacity as Commissioner of the New York

City Human Resources Administration ("HRA") and HRA (together, "the City

Defendants"), Kristin M. Proud, in her official capacity as Acting Commissioner of

the New York State Office of Temporary and Disability Assistance ("OTDA") and

OTDA (together, "the State Defendants"), and Tom Vilsack, in his official capacity

as Secretary of the United States Department of Agriculture ("USDA") and USDA

(together, "the Federal Defendants"), designed, approved, implemented, and

1 


Case 1:12-cv-09162-KBF Document 108 Filed 09/16/13 Page 2 of 28
administered the Sandy D·SNAP Program in a discriminatory manner, violating local, state, and federal law. (See Compl.l ~ 2.)
Specifically, Plaintiffs allege that all of the Defendants violated Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794, et seg., that the City and State Defendants violated the Americans with Disabilities Act, 42 U.S.C. §§ 12131, et seq. and the Food Stamp Act, 7 U.S.C. § 2020 and its implementing regulations, and that the City Defendants violated the New York State Human Rights Law § 296· 2(a), the New York State Social Services Law § 331, 18 N.Y.C.R.R. § 303.1(a)·(b), and the New York City Human Rights Law. (See id. ~l 64.)
On May 13, 2013, Plaintiffs brought a Motion for Class Certification, pursuant to Federal Rule of Civil Procedure 23(a) and Rules 23(b)(2) and 23(b)(1)(A). (See PIs.' Mem.2 at 3.) After carefully considering the parties' arguments, the Court hereby GRANTS Plaintiffs' Motion for Class Certification, with certain changes to the proposed class as discussed below.:>
1 Citations to "Comp!." refer to the Second Amended Complaint, filed on March 29, 
 2013. 
 2 Citations to "PIs.' Mem." refer to Plaintiffs' Memorandum of Law in Support of 
 their Motion for Class Certification, filed on May 13, 2013. 
 3 Class certification "may be altered or amended before final judgment." Fed. R. 
 Civ. P. 23(c)(1); see also In re Bank of Am. Corp. Sees., Derivative, & Emp. Ret. 
 Income Sec. Act (ERISA) Litig., 281 F.R.D. 134, 138 (S.D.N.Y. 2012) (explaining 
 that the Court has discretion regarding class certification and that it may alter or 
 modify a class as it sees fit) (citation omitted). The Court may reassess the 
 propriety of this certification as the factual record is developed. See Boucher v. 
 Syracuse Univ., 164 F.3d 113, 118 (2d Cir. 1999) (citations omitted). The parties 
 may request leave to file a Motion to Modify or to Decertify the Class at any time. 

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Case 1:12-cv-09162-KBF Document 108 Filed 09/16/13 Page 3 of 28
FACTUAL BACKGROUND 
 I. D-SNAP 

D-SNAP is a federal public benefits program designed to provide temporary food assistance benefits to individuals affected by disasters. (CompI. ~ 3.) D-SNAP benefits are provided as a one-time SNAP/Food Stamp award that is intended to assist eligible individuals pay for one month's supply offood.4 (Id.) Pursuant to the USDA guidelines, state agencies design their own general D-SNAP plans and must update them annually. (See Stephens Decl.,5 Ex. 7 at 15.) After a disaster, each state determines whether a D-SNAP program is necessary and if so, submits to the USDA a request to operate aD-SNAP program.6 (Id.) If approved, the USDA provides funding for 100% of disaster benefits and 50% of administrative costs incurred by the state. (Id. at 6.) II. The Hurricane Sandy D-SNAP Program
On October 30,2012, President Barack Obama declared New York a major disaster area due to the devastating impact of Hurricane Sandy on many parts of
'1 the State. (See CompI. 53.) Approximately one month later, on November 28,
2012, OTDA submitted a request on behalf of the HRA to the USDA, seeking permission to operate a D-SNAP program for the benefit of individuals living in areas particularly hard-hit by Hurricane Sandy. (Id. ~~ 9, 56.)
4 D.SNAP benefits are determined by household size. (See CompI. ~ 4.) For 
 example, an eligible family of three receives $526; an eligible single person receives 
 $200. (Id.) 
 5 Citations to "Stephens Decl." refer to the Declaration of Kenneth Stephens filed in 
 Support of Plaintiffs' Motion to Certify Class, filed on May 13, 2013. 
 6 The Food and Nutrition Service ("FNS"), a division of the USDA, administers D­
 SNAP. (See CompI. ~ 7.) 

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Case 1:12-cv-09162-KBF Document 108 Filed 09/16/13 Page 4 of 28
The USDA approved the State's request and on December 12, 2012, a sevenday application period for the Sandy D-SNAP Program began. 7 (CompI. ~~ 14,55.) The main application site was located in Fort Greene, Brooklyn, and a part-time satellite location was located in Staten Island. (Id. ~'r 15, 58.)
In their Complaint, Plaintiffs allege that in planning, advertising for, implementing, and administering the Sandy D-SNAP Program, the City, State, and Federal Defendants failed to provide reasonable accommodations for individuals with disabilities. (Id. ~~ 65, 66.) Specifically, Plaintiffs allege that the initial application for the Sandy D-SNAP Program, submitted by the State to the USDA, failed to account for or address the needs of individuals with disabilities. (Id. ~'I 16, 85.) Additionally, Plaintiffs allege that Defendants took all of the following actions in designing and implementing the Sandy D-SNAP Program, which resulted in an unlawful failure to provide reasonable accommodations for individuals with disabilities:
• Opened only two application sites, one of which was opened only on a parttime basis and only for four days;8 (see id. 'r~ 19, 58)
• Located one application site in Fort Greene, which was allegedly difficult for many individuals eligible to apply (most notably, those with disabilities) to access; (see id. ~'I 15, 20, 58, 59, 77, 78, 79, 80, 81)
7 The application period ran from December 12, 2012 to December 18, 2012. (See 
 CompI. '/14.) 
 8 The application site in Staten Island was open on a part-time basis from December 
 14, 2012 through December 17, 2012. (See CompI. ~ 58.) 

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Case 1:12-cv-09162-KBF Document 108 Filed 09/16/13 Page 5 of 28
• Created an inflexible application system whereby individuals had to apply either in person or through an authorized representative who needed to "possess extensive and intimate knowledge of the applicant's personal and financial affairs;" (see id. ~'111, 12,20,57,69,82,83,84,91)
• Allowed for only a short period of time during which individuals could apply for benefits; (see id. ~~ 20, 90, 91)
• Failed to consult with community-based organizations familiar with the needs of individuals with disabilities; and (see id. ~ 67)
• Failed to conduct sufficient outreach or provide adequate information about the application process to individuals with disabilities. (See id. ~~ 20, 88, 89.) According to Plaintiffs, Defendants had and currently have adequate
resources to provide reasonable accommodations, and "[a]s a result of the cumulative effect of Defendants' actions and inactions, many would-be applicants with disabilities have been denied access to much-needed emergency benefits through the [Sandy] D-SNAP [P]rogram to help feed themselves and their families."9 (Id. 'r~ 87, 88,93.) Plaintiffs contend that Defendants' failure to allow individuals with disabilities to retroactively apply for benefits constitutes a continuing violation of the law. (Id. 'l~ 96-98.) Plaintiffs allege that Defendants'
9 Plaintiffs argue that OTDA and HRA estimated that there would be up to 30,000 applicants for the Sandy D-SNAP Program, but less than 6,000 households actually applied as of December 18, 2012, the date upon which the application period closed. (See CompI. 'l~ 38-39.)
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Case 1:12-cv-09162-KBF Document 108 Filed 09/16/13 Page 6 of 28
failure to provide reasonable accommodations in the general D-SNAP plan constitutes a continuing violation of the law, as well. IO (Id. ~ 99.) III. Requested Relief
Based upon these allegations, Plaintiffs seek class certification, declaratory, injunctive, and possibly compensatory relief; reasonable attorneys' fees and costs; and for the Court to retain jurisdiction over this matter until there is "reasonable assurance" that Defendants will continue to comply with the relief afforded into the future. (Id. 'I~ 161-68.) With respect to the Motion for Class Certification currently before the Court, Plaintiffs seek certification of the following class, pursuant to Rule 23 of the Federal Rules of Civil Procedure:
All individuals who (a) have or had a physical or mental impairment that substantially limits one or more major life activities within the meaning of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §[§] 12101, et seg., or have a record of such an impairment; (b) are or were eligible to apply for benefits from a New York City [BRA D-SNAP], including the D-SNAP benefits offered in response to "Superstorm Sandy;" (c) reside or resided in the covered zip codes for an BRA D-SNAP Program; and (d) need or needed reasonable accommodations to enable them to apply for D-SNAP benefits. (PIs.' Mem. at 2.)
10 Specifically, Plaintiffs allege: "Defendants' policies, practices[,] and procedures are likely to create obstacles and barriers for people with disabilities to apply for or
'i benefit from any future D-SNAP program." (See Compl. 99.)
6 


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PROCEDURAL HISTORY On December 17, 2012, Plaintiff Toney-Dick filed this action, individually and on behalf of all others similarly situated, against the City Defendants. On December 21, 2012, Plaintiffs X.T., Hanan, and Moore filed a related First Amended Complaint. On January 8, 2013, Plaintiffs filed a Motion for Preliminary Injunction and a Motion to Certify the Class, and on January 17, 2013, the City Defendants filed a Motion to Dismiss the First Amended Complaint. On March 18, 2013, the Court dismissed Plaintiffs' Amended Complaint, with leave to file a Second Amended Complaint. Since there was no valid Complaint at that point, the Court dismissed as moot Plaintiffs' pending Motions for a Preliminary Injunction and for Class Certification. On March 29,2013, Plaintiffs filed a Second Amended Complaint (hereafter, "the Complaint"). On May 13, 2013, Plaintiffs filed the Motion for Class Certification currently before this Court. Thereafter, on June 12, 2013, the City Defendants filed an Answer to the Complaint. Also on June 12, 2013, the Federal Defendants filed a Motion to Dismiss. The following day, on June 13, 2013, the State Defendants filed a Motion to Dismiss. On July 12, 2013, the City Defendants filed a Motion for Judgment on the Pleadings.
DISCUSSION Class certification is governed by Rule 23 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 23. To be certified, a proposed class must meet the four prerequisites included in Rule 23(a), and additionally, must meet the
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requirements contained in at least one Rule 23(b) subsection. See Wal-Mart Stores, Inc. v. Dukes, - U.S. -, 131 S. Ct. 2541, 2548 (2011). I. Legal Standards
Pursuant to Rule 23(a), a plaintiff seeking certification first must demonstrate that: (1) the class is so numerous that joinder of all members is impractical; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. See Fed. R. Civ. P. 23. These requirements are colloquially referred to, respectively, as numerosity, commonality, typicality, and adequacy. The party seeking class certification must demonstrate by a preponderance of the evidence that it has met the elements of Rule 23(a). Novella v. Westchester Ctv., 661 F.3d 128, 149 (2d Cir. 2011).
As for Rule 23(b), Plaintiffs allege that they have met the requirements of two independent subsections of Rule 23(b) - Rule 23(b)(2) and Rule 23(b)(1)(A). (See PIs.' Mem. at 3.) Rule 23(b)(2) applies to situations where "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). '''Rule 23(b)(2) is designed to assist and is most commonly relied upon by litigants seeking institutional reform in the form of injunctive relief.'" Stinson v. City of New York, 282 F.R.D. 360, 379 (S.D.N.Y. 2012) (quoting Marisol A. v. Giuliani, 929 F. Supp. 662, 692 (S.D.N.Y. 1996), affd, 126 F.3d 372 (2d Cir. 1997)). Rule 23(b)(2) relief is particularly suitable
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in actions involving civil rights. See id. (citing Loper v. New York City Police Dep't, 135 F.R.D. 81, 83 (S.D.N.Y. 1991». As the Supreme Court explained: "The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted - the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them." Wal-Mart Stores, Inc., 131 S. Ct. at 2557 (internal quotation marks and citations omitted).
Rule 23(b)(1)(A) applies when prosecuting separate actions on behalf of each plaintiff by him or herself would create a risk of "inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class." Fed. R. Civ. P. 23(b)(1)(A). "Rule 23(b)(1)(A) 'takes in cases where the party is obliged by law to treat the members of the class alike (a utility acting toward customers; a government imposing a tax), or where the party must treat all alike as a matter of practical necessity (a riparian owner using water as against downriver or owners).'" Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S. Ct. 2231 (1997) (quoting Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv. L. Rev. 356, 388). As such, "'[c]ourts in this Circuit have repeatedly recognized that certification under subsection (b)(l)(A) is limited to claims for equitable relief." Oakley v. Verizon Commc's, Inc., No. 09 Civ. 9175, 2012 WL 335657 (S.D.N.Y. Feb. 1, 2012) (citation omitted).
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ANALYSIS 
 I. Rule 23(a)
a. Numerosity In this Circuit, "numerosity is presumed at a level of 40 members." Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473,483 (2d Cir. 1995) (citations omitted). "Plaintiffs need not set forth an exact class size to establish numerostiy." In re Bank of Am. Corp., 281 F.R.D. at 138.
1. Parties' Arguments Plaintiffs assert that their proposed class achieves the required numerosity because "Defendants' own data reflect that the numerosity element is satisfied." (PIs.' Mem. At 14.) Specifically, Plaintiffs assert that the United States Attorney for this district recently stated:
New York City contains a sizeable community of individuals with disabilities; although precise numbers are difficult to obtain, according to the City, "it is estimated that there are 889,219 individuals with disabilities, making up 11% of the population. . .. Within Zone A, which was subject to a mandatory evacuation order during Hurricane Sandy, there are at least 118,000 people with disabilities. (ld.) (citing Statement of Interest of the United States at 2, Brooklyn Ctr. for Independence of the Disabled v.:aloomberg, No. 11 Civ. 6690 (S.D.N.Y. May 10, 2013), ECF No. 151 (citing trial evidence». Plaintiffs reason that because 30,000 people were expected to apply for the Sandy D-SNAP Program and only 6,000
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actually did,l1 a substantial number of individuals with disabilities are members of
the class. (See ill.J
In response, the City Defendants argue that Plaintiffs sweep too broadly in
their estimation of the number of individuals affected by the alleged lack of
reasonable accommodations provided by the Sandy D-SNAP Program. (See City
Defs.' Mem. 12 at 5-6.) The City Defendants assert that the class is only comprised of
those individuals with disabilities who are not in receipt of SNAP, 13 are 250% below
the federal poverty line, are so impaired that they could not travel to the D-SNAP
site on their own, and do not have someone who could act as an authorized
representative. (Id.) The City Defendants further argue that Plaintiffs have failed
to meet the numerosity requirement because despite widespread outreach,
Plaintiffs have only identified four purported members of the proposed class. (See
id. at 5.)14
Plaintiffs dispute the City Defendants' arguments by explaining again that
approximately 24,000 more applicants were expected to apply for Sandy D-SNAP
Program benefits than actually did; assuming that the same percentage of disabled
11 While Plaintiffs' Memorandum of Law suggests that 6,000 individuals applied for Sandy D-SNAP Program benefits during the application window (see PIs.' Mem. at 14), Plaintiffs' Complaint states that 6,000 households - rather than individuals applied during that period. (See Compi. ~ 39.) 12 Citations to "City Defs.' Mem." refer to the City Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion to Certify a Proposed Class, filed on June 12, 2013. 13 According to the City Defendants, "any individual with a disability in receipt of SSI [Supplemental Security Income] who lives alone is categorically eligible for SNAP ...." (City Defs.' Mem. at 6.) 14 The Court notes that the class action vehicle eliminates the need to join all potential class members as "named plaintiffs." Therefore, whether one, four, or 13 were named, that fact is irrelevant to the instant analysis.
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individuals exists in the eligible population as in the City at large, Plaintiffs contend that at least 2,400 potential class members exist. (PIs.' Reply15 at 3.) Plaintiffs further argue that having only four named Plaintiffs does not defeat numerosity because Rule 23(a) only requires a single class representative. (Id.)
11. Analysis While the Court recognizes that data illustrating the precise number of eligible individuals for D-SNAP program benefits may be unavailable, Plaintiffs' extrapolations from the data provided persuades the Court by a preponderance of the evidence that there are at least 40 members of the proposed class. See Novella, 661 at 144 (finding that "the 'numerosity' requirement is satisfied when the class comprises 40 or more members" (quotation marks and citations omitted». Given the number of individuals living with disabilities in this City and the fact that the Sandy D-SNAP Program covered a number of zip codes,16 it seems likely that there are at least 40 class members who were eligible to apply for Sandy D-SNAP Program benefits but could not because of Defendants' alleged failure to comply with the law. Moreover, all individuals who are disabled and in need of reasonable accommodations at the time of the next D-SNAP program are encompassed in the class for purposes of the requested injunctive relief, and this group of class members is likely to be comprised of more than 40 individuals.
15 Citations to "PIs.' Reply" refer to Plaintiffs' Reply Memorandum of Law in Support of Motion for Class Certification, filed on July 19, 2013. 16 HRA requested permission to have the Sandy D-SNAP Program cover 10 full zip codes and two partial zip codes particularly hard-hit by Hurricane Sandy. (See Stephens Decl., Exs. 1, 3.)
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Accordingly, the Court finds beyond a preponderance of the evidence that the proposed class is sufficiently numerous to satisfY Rule 23(a).
b. Commonality To establish commonality, Plaintiffs must prove that "the class members have suffered the same injury." Wal-Mart Stores, Inc., 131 S. Ct. at 2551 (internal quotation marks and citation omitted). As the Supreme Court explains: "This does not mean merely that [all class members] have all suffered a violation of the same provision of the law." Id. Rather, what is at issue is whether the proposed class action has the capacity '''to generate common answers apt to drive the resolution of the litigation.'" Id. (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 131-32 (2009»). In other words, Plaintiffs must assert that there is a "common contention ... capable of class-wide resolution - which means that its truth or falsity will resolve an issue that is central to the validity of each of the claims in one stroke." Id. at 2561-62.
1. Parties' Arguments Although even a single question oflaw or fact will suffice to satisfy the commonality requirement, see Marisol A. by Forbes v. Giuliani, 126 F.3d at 376, Plaintiffs allege that there are numerous common questions among the class members, including "whether Defendants provided accommodations sufficient to meet their obligations under federal, state, and local discrimination laws, what accommodations were provided, whether they provided 'meaningful access' to disabled individuals, and whether other accommodations Defendants failed to make would have been 'reasonable' under the governing statutes." (PIs.' Mem. at 17.)
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n. Analysis Neither the State nor the City Defendants17 oppose Plaintiffs' assertion that the proposed class satisfies the commonality requirement. Nonetheless, it appears that while there is at least one central common question at issue in this case ­ whether the Federal, State, and City Defendants violated the law by failing to provide reasonable accommodations to individuals with disabilities that question is logically separated into two subparts: (1) whether the general D-SNAP planand therefore future D-SNAP programs provides for the legally-required reasonable accommodations to individuals with disabilities; and (2) whether the legally-required reasonable accommodations were provided specifically by the Sandy D-SNAP Program to individuals with disabilities. Both of these issues satisfy the commonality requirement. However, it is necessary to split the class into two subclasses: (1) disabled individuals who were eligible to apply for Sandy D-SNAP Program benefits; and (2) disabled individuals who are likely to meet the eligibility requirements for future D-SNAP programs. See In re Bank of Am. Corp., 281 F.R.D. at 138 (explaining that the court "has discretion on questions of class certification 'because the district court is often in the best position to assess the propriety of the class and has the ability ... to alter or modify the class, create subclasses, and decertify the class whenever warranted"') (quoting Sumitomo Copper Litig. v. Credit Lyonnais Rouse, Ltd., 262 F.3d 134, 139 (2d Cir. 2001».
17 The Federal Defendants did not file papers in opposition to Plaintiffs' Motion for Class Certification.
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Provided that Plaintiffs' proposed class is divided into these two subclasses, the Court finds by a preponderance of the evidence that the commonality requirement of Rule 23(a) has been met.
c. Typicality In the Second Circuit, typicality is satisfied when "each class member's claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant's liability." In re Flag Telecom Holdings, Ltd. Secs. Litig., 574 F.3d 29,35 (2d Cir. 2009). While there may be variations in fact pattern as between the named plaintiffs and the other members of the class, if the same allegedly unlawful conduct was directed at or affected them, the typicality requirement is usually met. See Robidoux v. Celani, 987 F.2d 931,936-37 (2d Cir. 1993). The possibility that damages may have to be determined on an individualized basis is not itself a bar to class certification. See Seijas v. Republic of Arg., 606 F.3d 53, 58 (2d Cir. 2010); see also New Jersey Carpenters Health Fund v. Residential Capital, LLC, 272 F.R.D. 160, 165 (S.D.N.Y. 2011) ("Even if ... many putative class members suffered no injury, such an infirmity would not defeat typicality in light of the fact that a showing of the typicality requirement is not demanding." (citation omitted», affd, 477 F. App'x 809 (2d Cir. 2012).
1. Parties' Arguments Plaintiffs argue that the named Plaintiffs in this action have been injured by the Defendants' alleged failure to provide reasonable accommodations in designing and implementing the Sandy D-SNAP Program. (See PIs.' Mem. at 19.)
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In response, both the City and State Defendants argue that the typicality requirement is not met here because the named Plaintiffs are all disabled individuals who allegedly could not access Sandy D-SNAP Program benefits due to a lack of reasonable accommodations, yet Plaintiffs' proposed class includes individuals who, for a variety of reasons, were not eligible to apply for the Sandy D­ SNAP Program but are possibly eligible for future D-SNAP programs. (See State Defs.' Mem.l8 at 4-5; City Defs.' Mem. at 7-8.)
Plaintiffs reject the State and City Defendants' contention, arguing that the typicality requirement is satisfied because "including currently harmed residents in the class is an accepted method of ensuring that prospective relief inures to the benefit of all those who need its protection, including those who were not previously harmed." (See PIs.' Reply at 6.) Moreover, Plaintiffs assert that the injury to the named Plaintiffs is ongoing insofar as the policies in place today allegedly fail to provide the legally required reasonable accommodations. (See id. at 2.)
n. Analysis While the proposed class includes two different sets of interests, those interests are plainly intertwined and thus, the different interests are not fatal to class certification. First, the class members - both those who were eligible to apply for Sandy D-SNAP Program benefits and those who may be eligible for future D­ SNAP Programs (which could include a number of individuals in the first group) share a concern about whether the past or the future D-SNAP programs (based on a
18 Citations to "State Defs.' Mem." refer to the State Defendant's Memorandum of Law in Opposition to Plaintiffs' Motion for Class Certification, filed on June 12, 2013.
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pre-established D-SNAP plan) will provide reasonable accommodations during any application period for eligible disabled individuals. Second, all class members essentially seek the same thing: an opportunity to apply for D-SNAP benefits for which they are eligible, with any legally-required reasonable accommodations provided. On the current record, whether securing the opportunity to apply for such benefits is made retroactively or prospectively is inapposite insofar as typicality is concerned. Third, to the extent that the precise issues regarding the reasonable accommodations provided and the types of relief being sought diverge, certifying one class with two subclasses, as previously explained, adequately addresses the issue. See In re Bank of Am. Corp., 281 F.R.D. at 138 (citation omitted).
Accordingly, the Court finds that the typicality requirement of Rule 23 is satisfied provided that the class is certified with two subclasses - one class for disabled individuals who were eligible to apply for benefits from the Sandy D-SNAP Program, and another class for disabled individuals who may be eligible to apply for future D-SNAP programs.
d. Adequacy To satisfy the adequacy requirement, Plaintiffs must prove both that the interests of the named Plaintiffs are not antagonistic to other members of the class, and that Plaintiffs' attorneys are qualified, experienced, and able to conduct the litigation. See In re Flag Telecom, 574 F.2d at 35. Courts generally have found that if the named plaintiffs' claims satisfy the typicality requirement, those named plaintiffs are also adequate to represent the class. Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 158 (S.D.N.Y. 2008); see also Hicks v. Morgan Stanley & Co., No. 01
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Case 1:12-cv-09162-KBF Document 108 Filed 09/16/13 Page 18 of 28
Civ. 10071, 2003 WL 21672085, at *3 (S.D.N.Y. July 16, 2003) (finding class representatives were adequate when the complaint alleged a common course of conduct and unitary legal theory for the entire class period).
1. Parties' Arguments Plaintiffs argue that the named Plaintiffs' interests are fully aligned with the interests of the other class members. (See PIs.' Mem. at 21.) Specifically, Plaintiffs state that "[t]he named Plaintiffs seek injunctive relief to assure that Defendants provide reasonable accommodations and meaningful access to apply for D-SNAP benefits in a manner consist with anti-discrimination laws." (Id.) While the State Defendants argue that there are two different sets of interests in play, and accordingly, Plaintiffs fail to meet the adequacy requirement of Rule 23(a), the State Defendants do not explain how the interests of the named Plaintiffs are antagonistic to those of the proposed class members. (See State Defs.' Mem. at 4.)
11. Analysis In this case, the named Plaintiffs are capable of adequately representing the interests of both subclasses because the named Plaintiffs seek both retroactive relief for injuries suffered as a result of the Sandy D-SNAP Program's alleged failure to provide reasonable accommodations,19 and they seek injunctive relief with respect
19 Specifically, Plaintiffs request, among other things, that the Court: "Permanently enjoin Defendants, their agents, employeesL] and all persons acting in concert with them from discriminating against Plaintiffs and class members by requiring them to (a) accommodate all class members by allowing them alternatives to the in­ person requirement, including but not limited to telephone, mail, internet, facsimile[,] or authorized representatives who are not themselves required to attest to the truth of an application and when these methods are not viable, home visits, and extend the D-SNAP application period so that all class members may have an
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to future D·SNAP programs because the named Plaintiffs, like all other members of the proposed class, face the possibility that they will be unable to access future D­ SNAP benefits because of the alleged failure by Defendants to provide reasonable accommodations.
Accordingly, since it is apparent by a preponderance of the evidence that the named Plaintiffs are positioned to represent the interests of the class as a whole, and because there is no question that the Legal Aid Society is experienced in litigating these types of matters and is capable of representing the interests of all of the class members in this case, the Court hereby finds that the Rule 23(a) adequacy requirement has been satisfied.
e. Ascertainability While not expressly stated in Rule 23, some courts "have found an implied requirement of ascertainability to the express requirements set forth in Rule 23(a)." Stinson v. City of New York, 282 F.R.D. 360, 373 (S.D.N.Y. 2012) (citations omitted). "The class that plaintiffs seek to certify must be readily identifiable so that the court can determine who is in the class, and thus, who is bound by the ruling." McBean v. City of New York, 228 F.R.D. 487,492 (S.D.N.Y. Apr. 27, 2005) (citations omitted). In other words, ascertainability is satisfied if "the class
equivalent period of time to apply for D-SNAP once reasonable accommodations are implemented; or (b) allow all class members the opportunity to apply and obtain D­ SNAP benefits retroactively; or (c) otherwise compensate all class members with equivalent SNAP benefits or cash payments." (Compi. ~ 163.) In other words, Plaintiffs request that Defendants provide either: (a) an opportunity to apply for equivalent benefits to those available under the Sandy D·SNAP Program, with reasonable accommodations provided; (b) that the Sandy D-SNAP Program application period be re·opened, with reasonable accommodations provided; or (c) compensation in the form of either SNAP benefits or cash payments.
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description is sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member." Casale v. Kelly, 257 F.R.D. 396, 405 (S.D.N.Y. 2009) (internal quotation marks and citations omitted). A class is sufficiently ascertainable if objective criteria can be used to identify its members. Id. (citations omitted).
1. Parties' Arguments In this case, the City Defendants argue that the proposed class "lacks any objective criteria regarding reasonable accommodations, i.e., any criteria with which to measure what accommodations would be reasonable and for whom." (City Defs.' Mem. at 8.) The City Defendants contend that "[t]he lack of any specifics about the type of reasonable accommodation or objective criteria for what it means to need a reasonable accommodation renders the potential class members unidentifiable and thus renders plaintiffs' proposed class inappropriate for class certification." (Id.) Plaintiffs contend that the City Defendants have failed to provide any "plausible reason why this requirement is unmet here." (See PIs. Reply at 9.) Plaintiffs explain that the phrase "reasonable accommodation" is "the very definition of an objective criteria - it does not depend on Plaintiffs' own assessment of their needs, and courts consistently certify classes defined in similar terms." (Id. (citing cases».
n. Analysis Plaintiffs seek to certify a class that essentially is comprised of individuals who have a disability (as that term is defined by the Americans with Disabilities Act), who were eligible to apply for the Sandy D-SNAP Program or who are eligible
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to apply for future D-SNAP programs, and who "need or needed reasonable accommodations to enable them to apply for D-SNAP benefits." (See PIs.' Mem. at 2.) The Court modifies the proposed class by separating it into two subclasses: (1) disabled individuals who were eligible to apply for benefits from the Sandy D-SNAP Program; and (2) disabled individuals who may be eligible to apply for future D· SNAP programs.
While the Court is not persuaded by the City Defendants' contention that defining class members based on whether they needed and/or will need reasonable accommodations to apply for D-SNAP benefits renders the class unascertainable, Plaintiffs' use of "reasonable accommodations" is misplaced. Specifically, the class members are entitled to reasonable accommodations by virtue of their being disabled, as such term is defined by the law; requiring reasonable accommodations is not what qualifies them for the relief being sought.
Nonetheless, because of the otherwise valid nature of Plaintiffs' request for certification, the Court simply strikes subpart (d).
f. Conclusion After using its discretion to dividing the proposed class into two subclasses, and striking subpart (d) from the proposed class definition, the Court finds that the modified proposed class satisfies the requirements of Rule 23(a). II. Rule 23(b) Since the Court has found that the proposed class, as modified into two subclasses and without proposed subsection (d), meets the requirements of Rule 23(a), the Court turns to the question of whether the class meets the requirements
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of at least one subsection of Rule 23(b). Plaintiffs contend that class certification is permissible pursuant to Rule 23(b)(2) and Rule 23(b)(1)(A). (See PIs.' Mem. at 22.)
In \Val-Mart, Inc. v. Dukes, the Supreme Court provides a thorough analysis of when it is appropriate to certify a class pursuant to Rule 23(b)(2). 131 S. Ct. at 2557. In Wal-Mart, several named plaintiffs brought a class action lawsuit on behalf of all female employees ofWal-Mart nationwide. Id. at 2547. Plaintiffs claimed that there was a pattern and practice whereby \Val-Mart managerial employees would exercise discretion regarding pay and promotion to the alleged disadvantage of women, in violation of Title VII of the Civil Rights Act. Id. at 2548.
Acknowledging its statement in Amchem Products, Inc. v. Windsor that civil rights cases alleging class-wide discrimination are prime examples of what Rule 23(b)(2) was intended to cover, 521 U.S. 591, 117 S. Ct. 2231 (1999), the Court also noted that the Advisory Committee notes accompanying the Rule reflected a series of decisions challenging racial segregation - "conduct that was remedied by a single classwide order." 131 S. Ct. at 2557-58. The Court explained that while Rule 23(b)(2) may be used to certify a class when a single injunction or declaratory judgment "would provide relief to each member of the class," Rule 23(b)(2) is not appropriate for cases in which individualized claims for compensatory relief are asserted. Id. at 2557.
The Supreme Court held that because the individual class members in \Val­ Mart sought back pay that was not incidental to injunctive or declaratory relief, class certification pursuant to Rule 23(b)(2) was improper. Id. at 2557. The Court explained: "\Vhen a class seeks an indivisible injunction benefitting all its members
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at once, there is no reason to undertake a case-specific inquiry into whether class issues predominate or whether class action is a superior method of adjudicating the dispute." rd. In contrast, individualized claims for compensatory relief require further inquiry to determine whether a class action is warranted, making class certification pursuant to Rule 23(b)(2) inappropriate. rd.
1. Parties' Arguments Here, Plaintiffs claim that their proposed class falls under Rule 23(b)(2) because "Defendants' discriminatory actions are generally applicable to the class," and "Plaintiffs are seeking final injunctive and declaratory relief that would apply equally to the class as a whole." (PIs.' Mem. at 23 (citation omitted». The State Defendants contend that pursuant to Galvan v. Levine, 490 F.2d 1255 (2d Cir. 1973), certification of the proposed class is unnecessary because the sought-after relief will apply to the proposed class members even if the class is not certified. (See State Defs.' Mem. at 7-8.) The State Defendants argue that if the injunctive relief is granted - namely, that reasonable accommodations are added to the general D-SNAP plan (and as a result, future D-SNAP programs) - that relief will run to all eligible individuals, whether or not they are members of a class action. (See id.) The State Defendants further contend that Galvan v. Levine suggests that no class certification is necessary because the Sandy D-SNAP Program ended months ago. (See id. at 7.) In response, Plaintiffs argue that Galvan v. Levine does not apply to this case because the factual circumstances of Galvan were such that the entity being challenged had already promised to change its conduct, rendering class certification
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a mere "formality." (See PIs.' Mem. at 24; PIs.' Reply at 9.) Plaintiffs point out that in this case, Defendants have made no such representation. (See PIs.' Mem. at 24.) Moreover, Plaintiffs argue that their demand that class members who were eligible to apply for Sandy D-SNAP Program benefits be given an opportunity to retroactively apply for either those or equivalent benefits, with reasonable accommodations provided, renders class certification necessary. (See PIs.' Reply at
9.)
11. Analysis In this case, class certification is warranted pursuant to Rule 23(b)(2). First, the Court is not persuaded that the nature of the relief being sought here would make class certification unnecessary. "In Galvan, discovery was complete and the defendant had already withdrawn the challenged policy prior to any judgment." Daniels v. The City of New York, 199 F.R.D. 513, 515 n.5 (S.D.N.Y. 2001). In this case, Defendants have not made any suggestion to this effect. Moreover, the relief being sought by class members who were eligible to apply for Sandy D-SNAP Program benefits requires those individuals to have an opportunity to apply for either the Sandy D-SNAP Program benefits (if the application period is re-opened) or for equivalent benefits. In order to provide this requested relief, class certification is necessary. Accordingly, the State Defendants' reliance on Galvan is unpersuaslve.
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Second, the requested relief is essentially declaratory and injunctive in nature,20 such that the facts of this case are distinguishable from those of Wal-Mart. (See PIs.' Mem. at 23, n.5; PIs.' Reply at 9.) At its core, Plaintiffs' Complaint requests that the general D-SNAP plan and the Sandy D-SNAP Program be deemed unlawful for failing to provide the legally-required reasonable accommodations to individuals with disabilities, that eligible individuals with disabilities be allowed to apply for either Sandy D-SNAP Program benefits (if the application period is re­ opened) or for equivalent benefits, and to require that the general D-SNAP plan be amended to ensure reasonable accommodations are provided for in future D-SNAP programs. To the extent that Plaintiffs seek compensatory relief (see Compi. ,-r 163), that request is incidental and secondary. Moreover, in contrast to Wal-Mart, where the Court stated that a class action would prevent Wal-Mart from making "individualized determinations of each employee's eligibility for backpay," the primary relief requested in this case does not deny Defendants the opportunity to make individual determinations about each class members' D-SNAP eligibility. By making the opportunity to apply their core requested relief, Plaintiffs provide the Defendants with an opportunity to determine D-SNAP eligibility on an individualized, case-by-case basis.
20 The State Defendants seem to acknowledge this fact. (See State Defs.' Mem. at 8 (stating that "[t]he gravamen of Plaintiffs' prayer for relief is focused on ... declaratory and injunctive relief."»
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For all of these reasons, the Court finds that class certification is appropriate pursuant to Rule 23(b)(2).21 III. Standing
The constitutional requirement of standing applies in class actions just as it does in all other matters. Lewis v. Casey, 518 U.S. 343, 357, 116 S. Ct. 2174 (1996) (citations omitted). To have standing pursuant to Article III, "a plaintiff must allege, inter alia, that he [or she] has suffered an 'injury in fact' which is (1) concrete and particularized and (2) actual or imminent, not conjectural or hypotheticaL" MacNamara v. City of New York, 275 F.RD. 125, 141 (S.D.N.Y. 2011) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130 (1992».
The Second Circuit has recently distinguished between Article III standing and class standing. See NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145, 158 (2d Cir. 2012). The Second Circuit stated in NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co. that "class standing" exists if a named plaintiff "plausibly alleges (1) that he 'personally has suffered some actual .. . injury as a result of the putatively illegal conduct of the defendant,' and (2) that such conduct implicates 'the same set of concerns' as the conduct alleged to have caused injury to the other members of the putative class by the same defendants." 693 F.3d at 162 (reviewing Blum v. Yaretsky, 457 U.s. 991, 102 S. Ct. 2777 (1982), Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174 (1996), and Gratz v. Bollinger, 539 U.S. 244, 123 S. Ct. 2411 (2003».
21 Since the Court certifies the class pursuant to Rule 23(b)(2), an analysis of the class under Rule 23(b)(I)(A) is unnecessary at this time.
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Here, both the State and the City Defendants argue that the proposed class should not be certified because it includes individuals who allegedly lack standing insofar as they were not eligible for the Sandy D·SNAP Program. (See State Defs.' Mem. at 4 (citing Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir. 2006) for the proposition that a class may not be certified if it contains members that lack standing); City Defs.' Mem. at 7.) The City Defendants explain: "An individual who did not have a disability before or during Sandy but has a disability now lacks any injury traceable to the Sandy D-SNAP [Program] and so, like an individual who now lives in a Sandy-affected zip code but did not before, would lack standing to obtain any of the retroactive relief plaintiffs seek in this action." (See City Defs.' Mem. at 7-8.) Similarly, the State Defendants argue that "[t]he class definition employed by Plaintiffs necessarily includes individuals whose alleged injury, at best, would be tenuously based on another natural disaster striking the designated zip codes sometime in the future." (See State Defs.' Mem. at 5.)
Despite these concerns, the Court finds that there is no problem of standing in this case.22 Both the named Plaintiffs and the proposed members of the class suffer an actual, ongoing, injury namely, that the Sandy D-SNAP Program and the general D-SNAP plan allegedly failed and continue to fail to provide reasonable accommodations for individuals with disabilities. Moreover, the injuries suffered by the named Plaintiffs raise the same set of concerns regarding defendants' conduct as those raised by the other class members.
22 There may be notice issues, but those are separate from the concerns about standing raised by the City and State Defendants.
27

Case 1:12-cv-09162-KBF Document 108 Filed 09/16/13 Page 28 of 28

CONCLUSION The Court hereby GRANTS Plaintiffs' request for class certification, except that it divides the proposed class into two subclasses and strikes subsection (d) from the proposed class definition. One subclass shall consist of disabled individuals who were eligible to apply for benefits from the Sandy D-SNAP Program. The other subclass shall consist of individuals who may be eligible to apply for benefits from a future D-SNAP program and who will need reasonable accommodations because of a disability (or disabilities). The Clerk of Court is hereby directed to terminate Docket No. 47.

Dated:

SO ORDERED.
New York, New York
September l3 , 2013

f::-­ D. ~
KATHERINE B. FORREST United States District Judge

28

 
 Case 1:12-cv-09162-KBF Document 111 Filed 09/23/13 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------------.J( ALECHEA TONEY-DICK, individually and on behalf of all others similarly situated, et aI.,

USJ)( 'il\ Y
DOCI \1/ \1' 

ELE( II{O\ICALLY FILED 
 DOC#: 

DATE .-ri. FD: SEP 2 3 201

Plaintiffs,

-v-

12 Civ. 9162 (KBF)

ROBERT DOAR, in his official capacity as Commissioner of the New York City Human Resources Administration, et aI.,

ORDER

Defendants.
------------------------------------------------------------------- J( KATHERINE B. FORREST, District Judge:

On September 20, 2013, an Oral Argument in the above-referenced matter

was held. As set forth on the record during that Argument, the Court hereby

DENIES the State Defendants' Motion to Dismiss (ECF No. 70) and DENIES the

City Defendants' Motion for Judgment on the Pleadings (ECF No. 75). Accordingly,

the Clerk of Court is directed to terminate both motions.

Additionally, the Court hereby sets forth the following Amended Schedule:

1. Document discovery shall close on November 29, 2013 (with good cause, a

party may produce truly late-discovery documents up to January 1, 2014);

2. All fact depositions shall be completed by January 27, 2014;

3. Expert discovery shall close on February 24, 2014;

4. All pretrial materials are due March 3, 2014;

5. A final pretrial conference shall occur on March 6, 2014 at 1:00 P.M.;

6. Trial shall commence on March 10, 2014.

1 


Case 1:12-cv-09162-KBF Document 111 Filed 09/23/13 Page 2 of 2
The parties are hereby ORDERED to notify the Court within three days of the date of this Order should they have any proposed changes to this schedule. A status conference will be held on November 20, 2013 at 1:30 P.M.
The Clerk of Court is directed to close the motions at ECF Nos. 70 and 75.

Dated:

SO ORDERED.
New York, New York
September z,>, 2013

KATHERINE B. FORREST 
 United States District Judge 


2 


 
 Toney-Dick v. Doar, Slip Copy (2013)

2013 WL 6057949 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Alechea TONEY–DICK, individually and on behalf of all others similarly situated, et al., Plaintiffs, v. Robert DOAR, in his official capacity as Commissioner of the New York City Human Resources Administration, et al., Defendants.
No. 12 Civ. 9162(KBF). | Nov. 14, 2013.
Opinion

OPINION & ORDER

KATHERINE B. FORREST, District Judge.
*1 This action involves the Disaster Supplemental Nutrition Assistance Program (“D–SNAP”) that was implemented in New York City following Hurricane Sandy (“the Sandy D–SNAP,” “the Program,” or “the D–SNAP”).

Plaintiffs Alechea Toney–Dick (“Toney–Dick”), X.T., Renee Moore (“Moore”), and Sherry Hanan (“Hanan”), individually and on behalf of all others similarly situated (collectively, “plaintiffs”), allege that defendants Robert Doar, in his official capacity as Commissioner of the New York City Human Resources Administration (“HRA”) and HRA (together, “the city defendants”), Kristin M. Proud, in her official capacity as Acting Commissioner of the New York State Office of Temporary and Disability Assistance (“OTDA”) and OTDA (together, “the state defendants”), and Tom Vilsack, in his official capacity as Secretary of the United States Department of Agriculture (“USDA”) and USDA (together, “the federal defendants”), designed, approved, and administered the Sandy D–SNAP in a discriminatory manner, violating local, state, and federal law. (See Am. Compl. ¶ 2, dated Mar. 29, 2013, ECF No. 41.)1

1

Specifically, plaintiffs allege the following: all

defendants are in violation of Section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. §§ 794, et seq.; the city and state defendants are in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12131, et seq.; the city and state defendants are in violation of the Food Stamp Act, 7 U.S.C. § 2020(e)(2)(B)(i) and (e)(11), as actionable under 42 U.S.C. § 1983; the city defendants are in violation of the New York State Human Rights Law § 296–2(a); the city defendants are in violation of New York State Social Services Law § 331 and 18 N.Y.C.R.R. § 303.1(a)-(b); and the city defendants are in violation of the New York City Human Rights Law.
Currently pending before this Court is the federal defendants’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b) (1), which was filed on June 12, 2013 and fully briefed on August 1, 2013. For the reasons set forth below, the Court GRANTS that motion.

PROCEDURAL HISTORY
On December 17, 2013, plaintiffs filed their Complaint (see ECF No. 1) and on December 21, 2012, plaintiffs filed their first amended Complaint. (See ECF No, 10.) On January 8, 2013, plaintiffs filed a motion for a preliminary injunction and a motion to certify the class. (See ECF No. 14.) On January 17, 2013, the city defendants filed a motion to dismiss. (See ECF No. 28.) On March 18, 2013, the Court issued a Memorandum Decision & Order granting in part the city defendants’ motion and granting plaintiffs leave to file a second amended Complaint.2 (See ECF No. 38.) On March 29, 2013, plaintiffs filed a second amended Complaint. (See ECF No. 41.)

2

In that Memorandum Decision & Order, the Court held

that OTDA and USDA were necessary parties to the

action and needed to be joined. (See 3/18 Order at

18–20.) The present decision is based on a more fully

developed record; it also relies on the federal

defendants’ representation that should plaintiffs prevail

on the ultimate question of liability, the federal

defendants “will not oppose disbursing funds up to the

Federal Government’s share of the amount necessary to

provide D–SNAP benefits for disabled individuals”

who were eligible for the Sandy D–SNAP but unable to

apply due to a lack of reasonable accommodations. (See

Fed. Defs.’ Mem. at 24–25, dated June 12, 2013, ECF

1

Toney-Dick v. Doar, Slip Copy (2013)
No. 67.)
On May 5, 2013, plaintiffs filed a second motion to certify the class (see ECF No. 47), which the Court granted on September 16, 2013. (See ECF No. 108.) On June 12, 2013, the city defendants filed an Answer (see ECF No. 65), and on June 12, 2013, the federal defendants filed the motion to dismiss that is currently before this Court. (See ECF No. 67.) Thereafter, the state defendants filed a motion to dismiss (see ECF No. 70) and the city defendants filed a motion for judgment on the pleadings (see ECF No. 75), both of which were denied by the Court on the record at a September 20, 2013 oral argument and in a written Order issued September 23, 2013. (See ECF No. 111.)
FACTUAL BACKGROUND
D–SNAP is a public benefits program that provides a one-time SNAP/Food Stamp benefit to assist eligible individuals in paying for one month’s worth of food. (Id. ¶ 51.) D–SNAP is administered at the federal level by the USDA Food and Nutrition Service (“FNS”); it provides federal funds to state and local recipients pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Pub. Law No. 93–299, 42 U.S.C. § 5179, and the Food Stamp Act and accompanying regulations, 7 U.S.C. § 2014(h), 7 CFR § 280. (Id. ¶¶ 3, 12.)
*2 State agencies design their own (general) D–SNAP plans and update them annually. (Declaration of Kenneth Stephens (“Stephens Decl.”), Ex. 7 at 12, dated May 13, 2013, ECF No. 55.) When a disaster strikes, a state evaluates the need for a D–SNAP and if desired, submits a request to FNS to operate a D–SNAP. (Id.)
On October 29, 2013, Hurricane Sandy hit the east coast, causing an estimated $20 billion in economic damages and disrupting the lives of countless New Yorkers. (Am. Compl. ¶ 54; Stephens Decl., Ex. 1 at 6.) On October 30, 2012, President Obama declared New York a major disaster area as a result of the hurricane. (Am.Compl.¶ 53.)
Throughout November of 2012, the city, state, and federal defendants engaged in numerous communications concerning the possibility of implementing a D–SNAP.3

For example, on November 6, 2012, James Arena–DeRosa, the Northeast Region Administrator of FNS, sent an email to Elizabeth Berlin from OTDA providing OTDA with information about what it should consider in deciding whether to implement a D–SNAP in New York City. (Decl. of Humani Lanka (“Lanka Decl.”), Ex. 5, dated July 19, 2013, ECF No. 81.) Arena–DeRosa stated: “We in FNS of course will support NY/NYC and your counties in whatever path you choose—but in my role in giving you the panoply of considerations I thought it might be of value to get [a helpful perspective] if D–SNAP evolves as a serious consideration.” (Id.) In response, Phillip Morris of the OTDA responded: “James—we would like to take you up on your offer to convene a call and invite all of the eligible D[-]SNAP counties.” (Id., Ex. 5.)

3

To implement a D–SNAP program, HRA (i.e., the city

defendants) must make a request to OTDA (i.e., the

state defendants), setting forth its plan. (Id. ¶ 52.)

OTDA then submits that plan to FNS (i.e., the federal

defendants) for approval. (Id.)

On November 8, 2013, a conference call occurred between the USDA and OTDA. (See Declaration of Tara M. LaMorte (“LaMorte Deck”), Ex. A, dated Aug. 1, 2013, ECF No. 89.) During that call, Bill Ludwig, the Regional Administrator of the USDA Southwest Regional Office, shared his experience conducting a D–SNAP following Hurricane Isaac. (Id.) Thereafter, on November 17, 2013, Arena–DeRosa sent an email to Commissioner Doar with a subject line “touching base on where you are in thought process on [D–SNAP].” (Lanka Deck, Ex. 3.) The email explained that “if there is anything you need from [FNS] let me know; [D–SNAP] waivers/plains do take a little time to review and negotiate with the state and we want to make sure we have all the right people available.” (Id.) Arena–DeRosa further stated that “it would be great to sort out details with [the State] and [FNS] on [M]onday/[T]ues[day] 19/20.” (Id.) Similarly, on November 23, 2012, Arena–DeRosa sent an email to various individuals from the city and state explaining that “planning a D–SNAP requires consider[able] dialogue and back and forth and a lot of planning. Unlike some waiver approvals, even after the DSNAP application is received by FNS there is a lot of dialogue that take[s] place between city—state—and FNS .” (Id.)
On November 28, 2012, the state defendants submitted their official request4 on behalf of the city defendants to
2

Toney-Dick v. Doar, Slip Copy (2013)

the federal defendants to operate and administer a D–SNAP in New York City. (Am. Compl. ¶ 3; see also Stephens Decl., Ex, 1 at 6–15 .) The proposed D–SNAP covered eligible individuals residing in 12 zip codes throughout Queens, Brooklyn, Manhattan, and Staten Island.5 (Am. Compl. f 9.) The proposal called for one main location located in Brooklyn and an additional possible satellite location in Staten Island. (Stephens Decl., Ex. 1 at 8.)

4

FNS received the request on November 29, 2012. (See

Declaration of Jessica Shahin (“Shahin Decl.”) ¶ 8,

dated June 12, 2013 ECF No. 69.)

5

The Program was open to residents of ten complete zip

codes in Coney Island (11224 and 11235), Red Hook

(11231), Far Rockaway (11691, 11693, 11694, and

11697), the southeastern shore of Staten Island (10306),

and lower Manhattan (10002). (Am.Compl.¶ 56.)

Additionally, two partial zip codes were covered:

11229 in Coney Island and 10305 in Staten Island. (Id.)

*3 After the proposal was submitted, the dialogue between the city, state, and federal defendants continued. Indeed, on November 29, 2012, Denise Daly of FNS sent an email to various individuals from the city, state, and federal agencies stating:
One significant area of concern is that only one designated D[-]SNAP site has been chosen with the possibility of adding an additional satellite site in Staten Island, With the number of potential applicants, we don’t believe that one site is practical and strongly urge you to consider adding the one additional site in Staten Island and perhaps consider if additional location(s) is necessary.
(Lanka Decl., Ex. 13.)6 On November 30, 2012, Arena–DeRosa sent another email to the city and state defendants stating that it was “[g]ood to chat with everyone” and stated that the federal defendants would wait until December 3, 2012 to approve the proposed D–SNAP because it would allow “a little more time to iron out details and [ ] provide better time and space [for] communicating[,] etc.” (Id., Ex. 8.)

6

This e-mail was then forwarded from Tom Hedderman

at the OTDA to other individuals at the OTDA. (See

Lanka Decl., Ex. 13.) Hedderman wrote: “USDA–HQ

doesn’t think that the one site or even two is sufficient.

However, they likely will approve regardless.” (Id.)

On December 3, 2012, FNS sent a letter to OTDA approving the Sandy D–SNAP Program. (See Shahin Decl. ¶ 8, Ex. A.)7 Following the approval, the city, state, and federal defendants continued to communicate about the design and implementation of the Program. For example, on December 5, 2012, an individual from OTDA sent an email to Arena–DeRosa, with various individuals from the city and state copied, explaining that two application sites were going to be utilized. (Lanka Decl., Ex. 4.) The email also referenced a November 30, 2012 conversation with the federal defendants and requested approval from the federal defendants for the “dates and timeframes that HRA is planning” for the satellite location in Staten Island. (Id.) A few days later, on December 7, 2012, Arena–DeRosa sent an email to the city and state defendants stating;

7

On December 7, 2012, it was announced that the

D–SNAP program was approved by the federal

defendants and that the application period would begin

on December 12, 2012. (Am.Compl.¶ 55.)

Sites—... FNS approval did encourage the exploration of more sites—and it was good to see Staten Island added. If the initial client numbers look high NYC could ask to extend hours, open an alternative site, or extend the number of days.
...
Disability Access—thanks for your willingness to explore flexibility should we grant it .... The current rules do state that DSNAP is either face-to-face in person or by a representative, so we will let you know as soon as we hear something and we will be sure to let the State know of any additional flexibilities that might be available in [these] circumstances.
(Id., Ex. 6.)8 Additionally, between December 7, 2012 and December 10, 2012, the federal and city defendants corresponded concerning the intake procedure that was
3

Toney-Dick v. Doar, Slip Copy (2013)

to be utilized. (Pls.’ 9/27 Ltr., Ex. A, dated Sept. 27, 2013, ECF No. 113.)

8

On December 7, 2012, FNS received notice from

Kenneth Stephens, a Supervising Attorney at the Legal

Aid Society, of potential problems related to disability

access for Sandy D–SNAP applicants. (See Lanka

Decl., Ex. 11.)

The Sandy D–SNAP program launched on December 12, 2012; it ran until December 18, 2012 with one full-time location in Fort Greene, Brooklyn, and from December 14–17, 2012 at a part-time location in Staten Island. (Am.Compl.¶ ¶ 4, 13.) While regular SNAP programs allow certain applicants to apply online, by phone, email, fax, mail, or home visit, the Sandy D–SNAP did not provide such alternative application procedures. (Id. ¶¶ 13, 17, 18, 68, 69.)9

9

The D–SNAP application process did allow for the use

of authorized representatives. However, at least some

members of the class were “not able to get authorized

representatives to apply on their behalf.” (Am. Compl.

¶ 5 n. 1.)

*4 Throughout the application period, the city, state, and federal defendants continued to communicate with each other. For example, on the date of the launch, December 12, 2012, Arena–DeRosa emailed individuals from both the city and the state confirming a meeting for the city, state, and federal defendants to occur on December 17, 2012. (Lanka Deck, Ex. 9.) Also on December 12, 2012, the state defendants emailed the state and city defendants discussing accommodations being made for the elderly and disabled. (Pls.’ 9/27 Ltr., Ex. E.)

ALLEGATIONS
According to plaintiffs, the city, state, and federal defendants failed to make reasonable accommodations for eligible individuals with disabilities. Specifically, plaintiffs contend that the following failures on the part of defendants violated the law: (1) failure to provide additional easily accessible application sites (see id. ¶ ¶ 19, 58–63, 85); (2) disallowance of alternative application mechanisms (id. ¶ ¶ 68–69); (3) refusal to provide for an extended application period (id. ¶ 20); and (4) failure to conduct adequate outreach (id.).

With respect to the motion currently before the Court—concerning plaintiffs’ allegations specifically against the federal defendants—plaintiffs allege that the federal defendants violated Section 504 of the Rehabilitation Act of 1973 and its implementing regulations. (Id. ¶ ¶ 134, 139.) Specifically, plaintiffs argue that the federal defendants “were aware of the fact” that the D–SNAP did not sufficiently provide reasonable accommodations in accordance with the law and nonetheless continued to fund and otherwise support the D–SNAP. (Id. ¶ 85.) Additionally, plaintiffs argue in more general terms that the federal defendants were actively engaged in the design and implementation of the D–SNAP, such that they too are responsible for the allegedly discriminatory nature of the Program.10

10

This position is more clearly articulated in plaintiffs’

opposition to the federal defendants’ motion to dismiss

than in the second amended Complaint.

In their motion to dismiss, the federal defendants argue pursuant to Rule 12(b)(1) that plaintiffs cannot establish subject matter jurisdiction because the Rehabilitation Act does not afford a private right of action against federal funding agencies. (See Fed. Defs.’ Mem. at 1.) As an alternative argument, the federal defendants argue that plaintiffs lack standing to maintain their Rehabilitation Act claim against the federal defendants and accordingly, the action must be dismissed as to them. (Id.)
In opposition, plaintiffs argue that an implied private right of action is available under the Rehabilitation Act because the federal defendants “were actively involved in shaping the distribution of [the D–SNAP] benefits,” and that the federal defendants “actively discriminated against New York City’s needy and disabled ....“ (Pls.’ Mem. at 2, dated July 19, 2013, ECF No. 78.) Plaintiffs further argue that they have standing because the harm they suffered is “fairly traceable” to the conduct of the federal defendants. (Id. at 16–20.)

LEGAL FRAMEWORK
I. Rule 12(b)(1) *5 Under Rule 12(b)(1), a case may be dismissed for lack of subject matter jurisdiction when the district court “lacks the statutory or constitutional power to adjudicate
4

Toney-Dick v. Doar, Slip Copy (2013)
it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) (citing Fed.R.Civ.P. 12(b)(1)). The court must accept a plaintiffs factual allegations in the complaint as true and draw all reasonable inferences in plaintiff’s favor. See Famous Horse, Inc. v. 5th Ave. Photo, Inc., 624 F.3d 106, 108 (2d Cir.2010). In other words, plaintiff must “allege facts that affirmatively and plausibly” suggest that jurisdiction exists. Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir.2011); see GMA Accessories, Inc. v. Dorfman—Pacific Co., Inc., No. 11 Civ. 3731, 2012 WL 899385, at *3 (S.D.N.Y. March 16, 2012) (explaining that dismissal is proper “when the complaint fails to allege sufficient allegations to support subject matter jurisdiction”). To survive a motion to dismiss under Rule 12(b)(1), a plaintiff has the burden of proving jurisdiction by a preponderance of the evidence. Makarova, 201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.1996)).
In deciding a Rule 12(b)(1) motion, the Court draws on both the well-pleaded facts from the complaint—including the documents attached thereto and incorporated therein—assuming such facts to be true, and construing reasonable inferences in plaintiff’s favor, and on relevant evidence from outside the pleadings. Amidax Trading Grp., 671 F.3d at 145; Makarova, 201 F.3d at 113; City of Newburgh v. Sarna, 690 F.Supp.2d 136, 141 (S.D.N.Y.2010); see also State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 75 n. 4 (2d Cir.2007) (“The distinction [between a Rule 12(b)(6) motion and a Rule 12(b)(1) motion] is significant.); Robinson v. Government of Malaysia, 269 F.3d 133, 141 (2d Cir.2001) (explaining that when a defendant challenges a court’s subject matter jurisdiction, the court “must look outside the pleadings to the submissions” when they may contradict the allegations in the complaint).

II. Section 504 of the Rehabilitation Act Section 504 of the Rehabilitation Act provides in part:

No

otherwise

qualified

handicapped individual in the

United States ... shall, solely by

reason of his handicap, be excluded

from the participation in, be denied

the benefits of, or be subjected to

discrimination under any program

or activity receiving Federal

financial assistance.

29 U.S.C. § 974. Section 504 was modeled on Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq., and Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. See Marlow v. United States Dep’t of Education, 820 F.2d 581, 582 (2d Cir.1987) (citations omitted) (explaining that “courts frequently construe section 504 with reference to Titles VI and IX” and that “in 1978, Congress amended section 505 of the Act, 29 U.S.C. § 794a(a)(2), to specify that the enforcement scheme of Title VI also governs section 504”). Id. (citation omitted).
a. Explicit Private Right of Action *6 “Section 603 of Title VI, 42 U.S.C. § 2000d–2 ... sets out two avenues for judicial review of agency decisions.” Id. First, judicial review is available when an agency decides to terminate or refuse to grant funding. Id. (citation omitted). Second, an agency action is “subject to such judicial review as may otherwise be provided by law for similar action taken by such department or agency on other grounds.” Id. (citing 42 U.S.C. § 2000d–2.)
Section 2000d–1 directs each federal agency that is empowered to distribute federal funds to effectuate Title VI’s anti-discrimination mandate through “rules, regulations, or orders of general applicability” that govern federally funded programs. 42 U.S.C. § 2000d-l. Funding agencies are obligated to ensure recipients of aid comply with their rules and regulations; if they fail to do so, the funding agency is supposed to first seek to secure voluntary compliance and if it is unable to do so, it is to terminate funding. Id.
In this case, plaintiffs’ allegations are not covered by either explicit cause of action provided for under the statutory framework. The federal defendants have not decided to terminate or refuse to grant funding, nor do plaintiffs challenge the federal defendants’ promulgation of—or failure to promulgate—“rules, regulations, or orders” prohibiting discrimination with respect to the Sandy D–SNAP.
Accordingly, no explicit cause of action is available as against the federal defendants.
b. Implicit Private Right of Action In Cannon v. University of Chicago, the Supreme Court raised the possibility that an implied cause of action
5

Toney-Dick v. Doar, Slip Copy (2013)
against a federal funding agency may exist under certain, limited circumstances. 441 U.S. 677, 706–07 n. 41 (1979). In the context of Title VI, the Court expressed hesitancy in allowing private actions against funding agencies in most circumstances—the Court believed such actions would be “far more disruptive ... than a private suit against the recipient of federal aid could ever be.” Id. Nevertheless, the Court left open the possibility that implied private causes of action against federal funding agencies could proceed under certain circumstances. See id. at 717 (explaining that allowing a private right of action directly against a federal funding agency “is not inconsistent with an intent on [Congress’s] part to have such a remedy available to the persons benefited by its legislation”).
While some courts have read Cannon to preclude the existence of a cause of action against a federal funding agency, see, e.g., Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 191 (4th Cir.1999) (reasoning that while Cannon “approved an implied right of action against the recipients of federal funds ... it is a different question altogether whether private parties may sue the federal funding agencies themselves”); Scherer v. United States, 241 F.Supp.2d 1270 (D.Kan.2003) (interpreting Cannon to preclude a private right of action against a federal funding agency), the Second Circuit has not foreclosed the possibility. See Marlow, 820 F.2d at 583; see also Cobb v. U.S. Dep’t of Educ. Office for Civil Rights, 487 F.Supp.2d 1049, 1053–53 (D.Minn.2007) (explaining that while some courts have read Cannon to suggest that no implied cause of action exists as against a federal funding agency, Cannon is more properly interpreted to “merely indicat[e] disapproval of an implied cause of action to force the federal funding agency to terminate funds to a discriminating recipient”) (citation omitted).
*7 In Marlow, the plaintiff filed a complaint with the Department of Education’s Regional Office for Civil Rights, alleging that the New York City Board of Examiners refused to hire him as a high school teacher in violation of Section 504 of the Rehabilitation Act. 820 F.2d at 582. The Regional Office for Civil Rights found that the Board of Examiners had not violated the Rehabilitation Act; Marlow appealed first to the district court and then to the Second Circuit. Id. at 582. Both the district court and the Second Circuit found that Marlow’s suit had no basis—there was no explicit cause of action available under the circumstances, and the Court held that no private right of action was available under Section 504 for “an individual complainant against a federal funding

agency for review of an agency’s finding of no discrimination.” Id. at 583.
Nonetheless, the Marlow Court recognized that suits against federal funding agencies have been allowed in all of the following circumstances: the funding agency “consciously and expressly abdicated its enforcement duties;” the funding agency used “improper procedures for approving funded programs;” the funding agency “acquiesced or actively participated in discriminatory practices;” and the funding agency “wrongly refused to pursue further action when efforts to achieve voluntary compliance [had] failed.” Id. at 583 (collecting cases). The Court stated that Marlow made no such allegations. Id. In so indicating, the Court implied that under circumstances more closely aligned with the cases cited, perhaps an implied cause of action against the federal funding agency would be available. Id.

As an example of a court allowing an implied private cause of action against a federal funding agency, the Seventh Circuit in Gatreaux v. Romney approved of such an action against United States Department of Housing and Urban Development (“HUD”), where HUD allegedly knowingly acquiesced in a Chicago municipal authority’s racially discriminatory housing scheme. 448 F.2d 731, 739 (7th Cir.1971).11 In Gatreaux, the government admitted that between 1950 and 1969, HUD approved and funded low-income housing located in sites that were “not ‘optimal’ “ because housing in preferable areas would have been stopped by the Chicago City Council—HUD made a policy determination “that it was better to fund a segregated housing system than to deny housing altogether to the thousands of needy [African–American] families of that city.” Id. at 737.

11

The Court notes that this case was decided prior to

Cannon. Its rationale is nonetheless informative.

The Gatreaux court discussed at length the degree of participation required to hold a federal agency accountable for discrimination, and noted that HUD played a “significant” role in the public housing projects at issue: “HUD retained a large amount of discretion to approve or reject both site selection and tenant assignment procedures of the local housing authority.” Id. at 731, 739 (citing Hicks v. Weaver, 302 F.Supp. 619, 623 (E.D.La.1969) where the court held that HUD’s “own discriminatory conduct” provided a basis for suit because it had “effectively controlled each and every step in the
6

Toney-Dick v. Doar, Slip Copy (2013)
program”). The court reasoned that “the fact that [HUD] is a federal agency or officer charged with an act of racial discrimination does not alter the pertinent standards, since it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.” Id. at 738 (citations omitted).
*8 More recently, the District Court of Minnesota held in Cobb v. U.S. Department of Education Office of Civil Rights that “[a] cause of action exists when the funding agency served as a joint actor and assisted the funding recipient by nurturing the discriminatory conduct.” 487 F.Supp.2d 1049, 1054 (D.Minn.2007) (citation omitted). In Cobb, the plaintiffs filed a complaint against federal funding agencies because the Minnesota State High School League, which received federal funds, allegedly “did not provide boys and girls with equal access to comparable competitive facilities during the final round of the state hockey tournament.” Id. at 1051. Plaintiffs further alleged that despite numerous complaints, the federal Office of Civil Rights “approved the League’s decision to continue to hold the girls’ tournament at the inferior facility for two years, and then to move the girls’ tournament to another inferior facility.” Id.
Citing to Marlow, the Cobb court refused to dismiss the federal funding agency from the lawsuit, holding that defendant’s alleged conduct was one of the “narrow circumstances” in which an implied private cause of action should be found. 487 F.Supp.2d at 1055. The court explained that plaintiffs asserted that the alternative venue for girls was “admittedly not comparable to the site where the boys’ hockey tournament was held,” and that the decision to continue to hold the girls’ tournament at the inferior site was “guided” by the Office of Civil Rights; additionally, plaintiffs argued that the Minnesota State Hockey League “would have held the tournament in a different location if so directed by” the Office of Civil Rights. Id.; see also Young v. Pierce, 544 F.Supp. 1010, 1015 (E.D.Tex.1982) (allowing action against federal agency for maintaining racially segregated housing in conjunction with local housing authority).
Nonetheless, a number of cases have, for a variety of declined to allow implied private rights of action to proceed against federal funding agencies. For example, in Bennett v. New York City Housing Authority, 248 F.Supp.2d 166, 170–71 (E.D.N.Y.2002), plaintiffs challenged HUD’s “systematic failure to ensure that [the New York City Housing Authority] administers Section 9 programs in a nondiscriminatory manner.” Id. at 171. The court refused to allow a private right of action against

HUD to proceed because “HUD has in place an administrative mechanism for parties seeking additional regulations,” which plaintiffs had failed to utilize. Id.
In Women’s Equity Action League v. Cavazos, the D.C. Circuit (in an opinion by then-Circuit Court Judge Ginsburg) precluded an implied private cause of action against the Department of Health, Education, and Welfare (“HEW”) for its alleged failure to enforce Title VI of the Civil Rights Act of 1964. 906 F.2d 742, 744, 750 (D .C. Cir.1990). The court reasoned that the suit was too broad in scope—it sought relief from the federal agency while bypassing the allegedly discriminatory recipients of the federal funding. Id. at 750.
*9 Taken together, Cannon, Marlow, and the various other cases cited by the parties suggest that the determination about whether to allow an implied private cause of action against a federal funding agency must necessarily be highly fact specific. While there is no case with circumstances quite like those currently before this Court, it does appear that there are certain, narrow circumstances in which an implied cause of action against a federal funding agency may be allowed in this Circuit.
The question before this Court is whether the facts in the record suggest enough active participation and/or acquiescence on the part of the federal defendants so as to give the Court subject matter jurisdiction over them. The Court must also consider whether the circumstances justify implying a private right of action; the Court must balance the various public policy considerations in play and give sufficient weight to the fact that Congress has not explicitly provided for such a possibility.
ANALYSIS
The federal defendants assert that they played a passive role in the Sandy D–SNAP Program; they provided support, resources, and best practices, but allowed the state and city defendants significant discretion to design and implement the D–SNAP. (See Fed. Defs.’ Mem. at 18–21.) Indeed, the federal defendants explain that they believe providing latitude to localities is necessary, particularly in a disaster scenario, because the individuals on the ground are in the best position to determine issues of need, capacity, infrastructure, and the like. (See, e.g., Tr. at 10–13 (stating, for example, that the state and local governments are in the best position to determine the
7

Toney-Dick v. Doar, Slip Copy (2013)

location of application cites because they have a better sense of power outages, floods, facilities, accessibility, etc.).) The federal defendants contend that their intention was to provide New York “with as much information as [they could] so that New York [could] make an informed decision as [it] assessed each county’s situation.” (Tr. at 17.)
In contrast, plaintiffs argue that the federal defendants were involved in the decision-making from early on in the process, and that they were heavily involved in deciding the hours, locations, and accessibility of the location sites. (Pls.’ Mem. at 8, 10 (arguing that the federal defendants “made a ‘strong recommendation’ that HRA not use its regular Job Centers as application sites”).) Plaintiffs further contend that the federal defendants imposed what was “perhaps the most onerous of all requirements”—that applicants apply in person or by a representative. (Id. at 8–10.) As an additional argument, plaintiffs contend that the federal defendants remained idle after being put on notice that individuals with disabilities were allegedly not receiving the appropriate accommodations. (Id. at 12 (arguing that the federal defendants did not think there were enough application sites, but approved the program anyway).)12

12

While not raised by any party to this litigation, the

Court notes that FNS provides localities with a number

of suggested topics to cover in a D–SNAP waiver

application but disability access is not included on that

list. (See Stephens Decl., Ex. 7 at 49–50.) Were

disability access to be added, it would perhaps provide

a useful framework for localities as they consider how

best to design reasonable accommodations for

individuals with disabilities (and other similar such

needs).

*10 Based on the parties’ submissions, the evidence suggests that the federal defendants acted as a funder with which (as one would expect) ideas and experience were shared, along with guidance as to the structure of the regulatory framework. It certainly does not appear that the federal defendants made ultimate decisions concerning the specific design and implementation of the Program. On the other hand, the operative regime imposed certain requirements (i.e., the in-person requirement) which the federal defendants acknowledge have not, at least in the past, been waived, and that at least in part have given rise to this litigation.13

13

The federal defendants note that localities have the

option of seeking a waiver from the in-person

application requirement (though the federal defendants

admit that they have received “less than a handful” of

such requests and have never allowed a waiver). (See

Tr. at 15.) The city and state defendants argue that it

was their impression that the in-person application

requirement was a “non-negotiable” for the federal

defendants. (See Tr. at 29, 31, 33.)

There are important policy considerations whenever a court extends the reach of private causes of action against government agencies. If evidence suggests that a funding agency knowingly and intentionally imposed requirements that in fact precluded localities from making reasonable accommodations for the disabled as required by the law, a suit against that agency may well be aligned with public policy. Yet, in a situation such as this, where the funding agency acted—during a time of crisis—consistent with its pre-existing regulatory regime, and guided a process consistent with that scheme, justifying a private right of action against that funding agency is difficult. It would be for the Legislature to provide such a right of action in these circumstances.
Here, the federal defendants paired emergency funding with meaningful oversight, shared best practices, offered support, connected localities with thought-partners from other regions of the country, and provided significant discretion to local and state funding recipients. In such a situation, exposing the federal funding agency to private litigation would possibly chill similar such actions in the future—if faced with the possibility of private litigation, the funding agency may be inclined to either provide funds while taking no part in the planning and implementation of the program, or instead, withhold funds entirely. In either scenario, it would be to the detriment of all those intended to benefit from programs such as D–SNAP.
Neither Congress nor the higher courts have directly spoken on this issue. If Congress believes private lawsuits against federal funding agencies should be available, it has within its power the capacity to effectuate that end. Similarly, if the Second Circuit or the Supreme Court finds that facts such as those currently before this Court are sufficient to justify an implied private right of action, that is their determination to make. In the meantime, this Court declines to find an implied a private right of action as against the federal defendants: the facts are too inconclusive, the public policy considerations too serious,
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Toney-Dick v. Doar, Slip Copy (2013)

and the law too unclear.14

14

To the extent that the possibility of keeping the federal

defendants in this action as nominal defendants has

been raised (see Tr. at 26–27), the Court declines to

take such action. The federal defendants have

represented—and the Court takes their word—that

should the city and state defendants be found ultimately

liable, the federal defendants would consider paying its

proportion of benefits and costs associated with

D–SNAP benefits owed. (See id. at 26; see also Fed.

Defs.’ Mem. at 24–25.)

CONCLUSION
For the reasons set forth above, the Court GRANTS the federal defendants’ motion to dismiss. The Clerk of Court shall terminate motion located at ECF No. 67.
*11 SO ORDERED.
	  

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 Case 1:12-cv-09162-KBF Document 224-3 Filed 03/30/15 Page 1 of 21
EXHIBIT C

Case 1:12-cv-09162-KBF Document 224-3 Filed 03/30/15 Page 2 of 21

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

----------------------------------------------------------x

ALECHEA TONEY-DICK, X.T., RENEE :

MOORE, and SHERRY HANAN, individually :

and on behalf of others similarly situated,

:

:

Plaintiffs,

:

:

v.

:

ROBERT DOAR, in his official capacity as Commissioner of the New York City Human Resources Administration; and THE NEW YORK CITY HUMAN RESOURCES ADMINISTRATION; KRISTIN M. PROUD, in her official capacity as Acting Commissioner of the New York State Office of Temporary and Disability Assistance; and the NEW YORK STATE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE; and TOM VILSACK, in his official capacity as Secretary of the United States Department of Agriculture; and the UNITED STATES DEPARTMENT OF AGRICULTURE,

: : : : : : : : : : : : : : : :

Defendants.

: :

----------------------------------------------------------x

No. 12-cv-9162 (KBF) (AJP)

STIPULATION AND ORDER OF SETTLEMENT

WHEREAS, between December 12 and 18, 2012, defendant the New York City Human

Resources Administration (“HRA”) administered a federal Disaster Supplemental Nutrition

Assistance Program (“DSNAP”) to address the needs of certain New York City residents

affected by Superstorm Sandy (the “Sandy D-SNAP I”); and

WHEREAS, on December 17, 2012, Plaintiff Alechea Toney-Dick, individually and on

behalf of all others similarly situated, filed a complaint against Defendants Robert Doar, in his

official capacity as Commissioner of HRA and HRA (collectively, the “City Defendants”)

Case 1:12-cv-09162-KBF Document 224-3 Filed 03/30/15 Page 3 of 21
asserting claims under the Americans with Disabilities Act (“ADA”), the Rehabilitation Act (“RA”), the Food Stamp Act (“FSA”), and state and local laws prohibiting disability discrimination; and
WHEREAS, on December 21, 2012, Plaintiffs Alechea Toney-Dick, X.T., Renee Moore, and Sherry Hanan (collectively, “Lead Plaintiffs”), individually and on behalf of all others similarly situated, filed an amended complaint (the “First Amended Complaint”) against the City Defendants; and
WHEREAS, on January 8, 2013, Lead Plaintiffs filed motions for a preliminary injunction and for class certification; and
WHEREAS, on January 17, 2013, the City Defendants filed a motion to dismiss the First Amended Complaint and on March 18, 2013, the Court granted the City Defendants’ motion to dismiss the First Amended Complaint without prejudice to the filing of a second amended complaint; and denied, without prejudice, Plaintiffs’ motions for preliminary injunction and class certification; and
WHEREAS, on March 29, 2013, Lead Plaintiffs, on behalf of a putative class, filed a second amended complaint (the “Complaint”), which is the operative complaint in the Action, against Tom Vilsack, in his official capacity as Secretary of the United States Department of Agriculture (“USDA”) and USDA (collectively with Vilsack, the “Federal Defendants”), Kristin M. Proud, in her official capacity as Commissioner of the New York State Office of Temporary and Disability Assistance (“OTDA”) and OTDA (collectively, the “State Defendants,”) and the City Defendants; and
WHEREAS, on May 13, 2013, Lead Plaintiffs filed a second motion for class certification; and
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WHEREAS, on June 12, 2013, the City Defendants filed an answer to the Complaint, and the State and Federal Defendants filed motions to dismiss the Complaint; and
WHEREAS, on July 12, 2013, the City Defendants filed a motion for judgment on the pleadings; and
WHEREAS, on September 16, 2013, the Court granted Lead Plaintiffs’ motion for class certification and certified two Subclasses pursuant to Federal Rule of Civil Procedure 23(b)(2); and
WHEREAS, on September 23, 2013, the Court denied the City Defendants’ motion for judgment on the pleadings and the State Defendants’ motion to dismiss the Complaint; and
WHEREAS, on October 15, 2013, the State Defendants filed an answer to the Complaint; and
WHEREAS, on November 15, 2013, the Court granted the Federal Defendants’ motion to dismiss the Complaint as to the Federal Defendants; and
WHEREAS, on January 22, 2014, the Court referred the Action to Magistrate Judge Andrew J. Peck for settlement discussions and terminated all pending motions without prejudice; and
WHEREAS, on February 28, 2014, Steven Banks was appointed as the Commissioner of HRA; and
WHEREAS, on or about July 8, 2014, USDA released a revised USDA D-SNAP Guidance; and
WHEREAS, on or about August 15, 2014, OTDA submitted its annual OTDA D-SNAP Plan to USDA for approval; and
3

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WHEREAS, on January 9, 2015, USDA approved the OTDA 2014-15 D-SNAP Plan; and
WHEREAS, on January 26, 2015, Sharon Devine was appointed as the Executive Deputy Commissioner of OTDA; and
WHEREAS, City Defendants and State Defendants deny that they have violated the ADA, RA, FSA or state and local laws prohibiting disability discrimination, and Lead Plaintiffs contend that the claims are meritorious; and
WHEREAS, in order to resolve all issues pending between the Settling Parties without the expense, risks, delays, and uncertainties of a trial and any appeals, the Lead Plaintiffs, City Defendants and State Defendants agree to the terms of this Stipulation and Order of Settlement (the “Stipulation”) as stated below; and
WHEREAS, the Settling Parties acknowledge that the Court has subject matter jurisdiction over this case, and authority to enter this Stipulation and to enforce its terms; and City Defendants and State Defendants acknowledge they are subject to personal jurisdiction in the Court;
IT IS HEREBY STIPULATED AND AGREED by and among the undersigned that the Action is settled and dismissed, with prejudice subject to the approval of the Court, on the following terms and conditions: I. JURISDICTION
This Court shall retain jurisdiction of the Action for the purpose of (i) entering orders providing for awards of Attorneys’ Fees to Plaintiffs’ Counsel and (ii) enforcing the terms of this Stipulation. Such jurisdiction shall continue until the earlier of (a) twenty four (24) months after the Effective Date or (b) twelve (12) months after the Effective Date if the City Defendants have
4

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appointed and convened a Disability Advisory Community Panel and so certify in writing to all counsel. II. DEFINITIONS As used in this Stipulation, the following terms shall have the following meanings.
A. “Action” means the class action in the Court captioned Toney-Dick, et al. v. Doar, et al., No. 12-cv-9162 (KBF) (AJP), filed on December 17, 2012.
B. “Attorneys’ Fees” means the fees, costs, and expenses outlined in Section VII below.
C. “Class” or “Class Members” means the members of Subclass 1 and Subclass 2. D. “Court” means the United States District Court for the Southern District of New York. E. “Disability Advisory Community Panel” means a collaborative entity comprised of representatives from HRA and organizations that have an interest in, advocate for, or provide services to, people with disabilities, as well as people with disabilities, including HRA clients. The Disability Advisory Community Panel will address emerging issues, challenges, and solutions related to disability and other access and functional needs as they relate to HRA policy and the delivery of services to clients with disabilities. F. “Effective Date” means the date upon which all of the following events have occurred:
(1) The Court has so-ordered and entered the Stipulation; (2) The Court has entered the Judgment in the Action, following notice to the
Class, the Fairness Hearing, and compliance with the notice provisions of the Class Action Fairness Act, 28 U.S.C. § 1715; and
5

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(3) the Judgment has become Final. G. “Execution Date” means the date of the signing of this Stipulation by the last Settling Party to sign this Stipulation. H. “Fairness Hearing” means the hearing to be held by this Court pursuant to Federal Rules of Civil Procedure 23(c)(2) and 23(e) after Notice has been given to the Subclasses. I. “Final,” with respect to the Judgment or any other Court order in the Action, means that no further judicial review, whether by appeal, mandamus, rehearing or writ of certiorari, remains available in any judicial forum. J. “Judgment” means a judgment approving the Settlement, substantially in the form to be submitted by the Settling Parties by March 30, 2015, to be entered by the Court and directed by the Court as final pursuant to Federal Rule of Civil Procedure 54(b). K. “Plaintiffs’ Counsel” means The Legal Aid Society and the law firm of Gibson, Dunn & Crutcher LLP. L. “OTDA 2014-15 D-SNAP Plan” means the State of New York Disaster Supplement Nutrition Assistance Program – 2014-2015 plan approved by USDA on or about January 9, 2015. M. “OTDA D-SNAP Plan” means the proposed D-SNAP state plan submitted annually by OTDA to USDA. N. “Revised USDA Guidance” means the Disaster SNAP Guidance and Toolkits promulgated by USDA on or about July 8, 2014. O. “Settlement” means the resolution of the Action and the agreement of the Settling Parties embodied in this Stipulation. P. “Settling Defendants” means the City Defendants and State Defendants.
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Q. “Settling Parties” means Lead Plaintiffs, on behalf of the Class, and the Settling Defendants.
R. “State Disability Access Procedures” collectively means: (i) OTDA’s 06-ADM05, “Providing Access to Temporary Assistance Programs for Persons with Disabilities and/or Limited English Proficiency (LEP)”; (ii) OTDA’s public-facing website, www.otda.ny.gov, that provides certain documents in a Jobs Access With Speech (“JAWS”) compatible format; (iii) OTDA’s General Information System GIS 14 TA/DC022, entitled “Disability Accommodation Indicator”; and (iv) the OTDA 2014-15 D-SNAP Plan.
S. “Subclasses” means Subclass 1 and Subclass 2. T. “Subclass 1” means the first subclass certified on September 16, 2013, consisting of “disabled individuals who were eligible to apply for benefits from the Sandy D-SNAP I Program.” U. “Subclass 2” means the second subclass certified on September 16, 2013, consisting of “individuals who may be eligible to apply for benefits from a future D-SNAP program and who will need reasonable accommodations because of a disability (or disabilities).” V. “USDA Guidance” means the Disaster SNAP Guidance and Toolkits provided periodically by USDA. W. “Waiver Request” means the document attached hereto as Exhibit A. III. RETROSPECTIVE RELIEF TO SUBCLASS 1 A. With respect to Subclass 1, on the Effective Date, the City Defendants shall implement the Retrospective Relief by promptly submitting to OTDA the Waiver Request. If USDA approves all of the terms of the Waiver Request, City Defendants shall administer the distribution of D-SNAP benefits in accordance with the Waiver Request. Should USDA request a change in the Waiver Request, City Defendants shall refrain from agreeing to any such request
7

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until Plaintiffs’ Counsel has been notified and had two (2) business days to respond. After the earlier of (i) receipt of Plaintiffs’ Counsel’s response or (ii) the close of the second business day after notification to Plaintiffs’ Counsel of such a request, City Defendants shall promptly respond to USDA’s request (including, where necessary, through OTDA). City Defendants shall endeavor to make such revisions to the Waiver Request as are necessary to secure USDA approval, provided, however, that the City Defendants may decline to make revisions to the Waiver Request that would impose a material burden on the City Defendants. If USDA approves all of the terms of a revised Waiver Request proposed by City Defendants in response to a USDA request, City Defendants shall administer the distribution of D-SNAP benefits in accordance with the revised Waiver Request. (The distribution of D-SNAP benefits in accordance with the Waiver Request or a revised Waiver Request, the “Sandy D-SNAP II”).
B. With respect to Subclass 1, the State Defendants shall, upon receipt from City Defendants, promptly submit the Waiver Request to USDA. The State Defendants shall promptly advise City Defendants and Plaintiffs’ Counsel if USDA requests a change in the Waiver Request. State Defendants shall not agree to any such requests themselves. If the State Defendants receive a revised Waiver Request from HRA and a request from HRA to submit the revised Waiver Request to USDA, State Defendants shall promptly submit the revised Waiver Request to USDA. IV. PROSPECTIVE RELIEF TO SUBCLASS 2
A. With respect to Subclass 2, the City Defendants shall, so long as the Court retains jurisdiction over the Action, undertake their best efforts in the administration of future D-SNAP programs to comply with the ADA, RA, FSA, state and local laws prohibiting disability discrimination, the then-current USDA Guidance, and the then-current OTDA D-SNAP Plan.
8

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B. With respect to Subclass 2, the State Defendants shall, so long as the Court retains jurisdiction over the Action,
(1) Discuss with the City Defendants (or their successors) whether they have considered the options available in the State Disability Access Procedures and the Revised USDA Guidance, and any lawfully established revisions or supplements to these documents, in the distribution and/or administration of any future D-SNAP benefits by City Defendants and the need to make reasonable accommodations for members of Subclass 2, including access to the program application process;
(2) Maintain the State Disability Access Procedures in all material respects. C. Nothing in Section IV-A shall preclude City Defendants from taking any lawful actions. D. Nothing in Section IV-B shall preclude State Defendants from taking any lawful actions, including but not limited to amending the State Disability Access Procedures. V. ENTRY OF JUDGMENT If the Settlement contemplated by this Stipulation is approved by the Court after the Fairness Hearing, the Settling Parties shall request that the Court enter the Judgment. The Judgment shall include, among other things, the releases provided for herein, and an express determination pursuant to Federal Rule of Civil Procedure 54(b) that there is no just reason for delay of entry of the Judgment. VI. RELEASES Lead Plaintiffs, Subclasses 1 and 2, the members of Subclass 1 and Subclass 2, and their heirs, administrators, representatives, attorneys, successors, and assigns, and each of them hereby RELEASE, and FOREVER DISCHARGE the Settling Defendants and their agencies, divisions,
9

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departments, officers, employees, and agents from—and are hereby FOREVER BARRED and PRECLUDED from prosecuting—any and all claims, causes of action, or requests for any injunctive, monetary, and/or any other form of relief, including, but not limited to, damages, tax payments, debt relief, costs, attorneys’ fees, expenses, and/or interest, except as provided for below, whether presently known or unknown, that they have or could have asserted in the Action by reason of, with respect to, in connection with, or which arise out of, any matters alleged in the Action (collectively, the “Released Claims”). Each Lead Plaintiff agrees to execute and deliver to Settling Defendants’ attorneys a release based on the terms of this Paragraph forthwith upon the entry of the Judgment. VII. ATTORNEYS’ FEES
A. The Settling Parties shall negotiate in good faith as to a final amount of Attorneys’ Fees, inclusive of costs and litigation expenses, to be awarded to Plaintiffs’ Counsel.
(1) If the Parties are able to negotiate a final amount of Attorneys’ Fees, inclusive of costs and litigation expenses, to be awarded to Plaintiffs’ Counsel, the stipulation of settlement for such fees (the “Attorneys’ Fees Agreement”) shall contain the following provision:
Payment by State Defendant of any Attorneys’ Fees pursuant to this Attorneys’ Fees Agreement is subject to the approval of all appropriate State officials. Lead Plaintiffs and Plaintiffs’ Counsel agree to execute and deliver all necessary and appropriate vouchers and other documentation requested with respect to obtaining such approval and effectuating payment. In the event such approval is not obtained, then this Attorney’s Fees Agreement shall be null, void, and of no further force and effect.
(2) If such negotiations are unsuccessful, Plaintiffs’ Counsel shall apply to the Court before the Fairness Hearing for an award of no more than $750,000 in Attorneys’ Fees, inclusive of costs and litigation expenses, and the
10

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Settling Defendants reserve all rights to contest the amount of Attorneys’ Fees sought in such application. B. Any Attorneys’ Fees that are awarded by the Court shall be paid to Plaintiffs’ Counsel within one hundred and twenty (120) days of the Judgment in the Action becoming Final. C. An award of Attorneys’ Fees and/or litigation expenses is not a necessary term of this Stipulation and is not a condition of the Settlement embodied herein. Neither Plaintiffs nor Plaintiffs’ Counsel may cancel or terminate the Settlement based on the Court’s or any appellate court’s ruling with respect to attorneys’ fees and/or litigation expenses. VIII. CONDITIONS OF SETTLEMENT AND EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION If the Court disapproves the Settlement or any material part thereof or declines to enter the attached Judgment in any material respect, or if the Judgment is modified or reversed in any material respect by an Order or mandate that is a Final decision, then: (1) The Settlement and relevant portions of this Stipulation shall be canceled and terminated without prejudice and this Stipulation shall be null and void and shall have no further force or effect; and (2) The Class and the Settling Defendants shall revert to their respective positions in the Action as of January 21, 2014. IX. ENFORCEMENT A. City Defendants shall provide a mechanism pursuant to which Plaintiffs’ Counsel may bring to City Defendants’ attention individual cases or instances in which there has been an alleged violation of the terms and conditions of Section III of this Stipulation in the operation of Sandy D-SNAP II. City Defendants shall investigate the case(s), take any appropriate steps
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required to resolve the issue(s), and report the result of such investigation in writing to Plaintiffs’ Counsel within seven (7) calendar days.
B. In the event of a motion by the Class for enforcement or contempt based upon either the City and/or State Defendants’ alleged non-compliance with this Stipulation, City and/or State Defendants shall be considered to be in compliance with the provisions of this Stipulation unless the Class establishes that the City and/or State Defendants’ failures or omissions to comply with the provisions of this Stipulation were not minimal or isolated, but were sufficiently significant or recurring as to be systemic. Non-systemic individual and isolated violations of this Stipulation shall not form a basis for a finding that City and/or State Defendants’ have acted in contempt of this Stipulation or a motion for enforcement.
C. If Plaintiffs’ Counsel believes that the City and/or State Defendants have failed to comply with the provisions of this Stipulation, Plaintiffs’ Counsel shall notify the City and State Defendants’ counsel in writing of the nature and specifics of the alleged failure to comply and shall specify the basis for such belief within seven (7) calendar days of the alleged failure to comply. Unless otherwise resolved, the Plaintiffs’ Counsel and the City and/or State Defendants’ Counsel shall confer within seven (7) calendar days following notice to the City and State Defendants’ Counsel in an attempt to arrive at a resolution of the alleged failure to comply.
D. If no resolution is reached within three (3) business days from the date of the conference provided for by Section IX-C above, Plaintiffs’ Counsel may move this Court for an order enforcing the provisions of this Stipulation and/or for contempt. Plaintiffs’ Counsel shall bear the burden of proving that the alleged noncompliance is sufficiently significant or recurring so as to be systemic, as set forth in Section IX-B above. No motion for contempt or enforcement shall be brought to remedy those violations that the Settling Parties agree (a) have been cured or
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(b) will be cured pursuant to a plan agreed upon by the Settling Parties. In the event that the Class and the allegedly breaching Defendant(s) agree to a plan to cure an alleged violation and the Class believes thereafter that the violation has still not been cured, the Class must provide at least five (5) business days’ notice to the City and State Defendants before any motion is made for enforcement of this Stipulation or for contempt.
E. Any motion to the Court for an order enforcing the provisions of this Stipulation and/or for contempt must be made no later than 45 calendar days after Plaintiffs’ Counsel has provided the City Defendants and the State Defendants with notice pursuant to Paragraphs IX-C or IX-D above, whichever is applicable, unless a different time frame is agreed to by Plaintiffs’ Counsel and the Settling Party(-ies) who is (or are) alleged to be in noncompliance.
F. An application for Sandy D-SNAP II benefits shall not be denied solely for the basis that it is untimely if the applicant invoked the provisions in IX-A during the application period.
G. Nothing in this Section IX shall be construed as diminishing the right of any Class Member to challenge a failure to process, or the denial of, his or her application for a Sandy DSNAP II benefit by way of an administrative fair hearing or an Article 78 proceeding under the New York Civil Practice Law and Rules. X. MISCELLANEOUS PROVISIONS
A. Neither this Stipulation nor any order or judgment approving it constitutes an admission or concession by the Settling Defendants (i) of the truth of any allegation or the validity of any claim asserted in the Action, (ii) of the liability of the Settling Defendants, or (iii) of any fault, omission, or failure to act by the Settling Defendants, or an admission or concession by the Lead Plaintiffs or Class Members of the lack of merit of any claims.
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B. Nothing contained in this Stipulation shall impose upon the Settling Defendants any duty, obligation, or requirement, the performance of which would be unlawful, or, with respect to the State Defendants, that would impair the State Defendants’ ability to participate in the federal D-SNAP program by amending the OTDA 2014-15 D-SNAP Plan, or any other OTDA D-SNAP Plan, to conform with any revisions to the Revised USDA Guidance or future USDA Guidance.
C. The Exhibit attached hereto is hereby incorporated by reference as though fully set forth herein. Notwithstanding the foregoing, in the event that there exists a conflict or inconsistency between the terms of this Stipulation and the terms of any exhibit attached hereto, the terms of the Stipulation shall prevail.
D. The Settling Parties intend this Stipulation and the Settlement to be a final and complete resolution of all disputes asserted or which could be asserted by Lead Plaintiffs or any other Class Members against the Settling Defendants with respect to the Released Claims.
E. The terms of the Settlement, as reflected in this Stipulation, may not be modified or amended, nor may any of its provisions be waived, except by a writing signed by the counsel of both Lead Plaintiffs and the Settling Defendants (or their successors-in-interest) and approval by the Court.
F. The headings herein are used for the purpose of convenience only and are not meant to have legal effect.
G. Without further order of the Court, the Settling Parties may collectively agree to reasonable extensions of time to carry out any of the provisions of this Stipulation.
H. This Stipulation contains all the terms and conditions agreed upon by the parties hereto, and no oral agreement entered into at any time nor any written agreement entered into
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prior to the execution of this Stipulation regarding the subject matter of the instant proceeding shall be deemed to exist, or to bind the parties hereto, or to vary the terms and conditions contained herein.
I. This Stipulation may be executed in one or more counterparts, including by signature transmitted via facsimile, or by a .pdf/.tif image of the signature transmitted via email. All executed counterparts and each of them shall be deemed to be one and the same instrument.
J. This Stipulation shall be binding upon and inure to the benefit of the successors and assigns of the Settling Parties, including the successors of the officers sued in their official capacities.
K. The construction, interpretation, operation, effect and validity of this Stipulation, and all documents necessary to effectuate it shall be governed by the laws of the State of New York without regard to conflicts of laws, except to the extent that federal law may govern.
L. Any action arising under or to enforce this Stipulation, or any portion thereof, shall be commenced only in the Court.
M. This Stipulation shall not be construed more strictly against one Settling Party than another merely by virtue of the fact that it, or any part of it, may have been prepared by counsel for one of the Settling Parties.
N. (1) The undersigned representative of the State Defendants to this litigation certifies that he is authorized to enter into the terms and conditions of this Stipulation and to execute and bind legally State Defendants to this document.
15

Case 1:12-cv-09162-KBF Document 224-3 Filed 03/30/15 Page 17 of 21

(2) The undersigned representative of City Defendants to this litigation certifies that he or she is authorized to enter into the terms and conditions of the Stipulation and to bind legally the City Defendants to this document.
(3) Each undersigned representative of Lead Plaintiffs and Class Members to this litigation certifies that he or she is authorized to enter into the terms and conditions of the Stipulation and to bind legally the Lead Plaintiffs and Class Members to this document.
O. Plaintiffs’ Counsel and Settling Defendants’ Counsel agree to cooperate reasonably with one another in seeking Court approval of the Settlement, as embodied in this Stipulation, and to use reasonable efforts to promptly agree upon and execute all such other documentation as may be reasonably required to obtain final approval by the Court of the Settlement.
P. If any Settling Party is required to give notice to another Settling Party under this Stipulation, such notice shall be in writing and shall be deemed to have been duly given upon receipt of hand delivery or facsimile or email transmission, with confirmation of receipt. Notice shall be provided as follows:

If to Lead Plaintiffs or Plaintiffs’ Counsel:

Kenneth Stephens, Esq. The Legal Aid Society 199 Water Street New York, NY 10038 kstephens@legal-aid.org (212) 577-3988

16

Case 1:12-cv-09162-KBF Document 224-3 Filed 03/30/15 Page 18 of 21

With a copy (that shall not constitute notice) to:

Randy M. Mastro, Esq. Gibson, Dunn & Crutcher LLP 200 Park Avenue New York, NY 10166 rmastro@gibsondunn.com (212) 351-3825

If to the City Defendants:

Thomas B. Roberts, Esq. Assistant Corporation Counsel 100 Church Street New York, NY 10007 Throbert@law.nyc.gov 212-356-0872
and
Martha Calhoun, Esq. General Counsel New York City Human Resources Administration 4 World Trade Center 150 Greenwich Street New York, NY 10007 calhounm@hra.nyc.gov

If to the State Defendants:

John Gasior, Esq. Assistant Attorney General 120 Broadway, 24th Floor New York, NY 10271 Tel: (212) 416-8570 johngasior@ag.ny.gov
and
Krista Rock, Esq. General Counsel New York State Office of Temporary and Disability Assistance 40 N. Pearl St. Albany, NY, 12243 Tel: (518) 474-9502 Krista.rock@otda.ny.gov

17

Case 1:12-cv-09162-KBF Document 224-3 Filed 03/30/15 Page 19 of 21
Q. The Settling Parties to this Stipulation shall seek to uphold the validity of this Stipulation in any lawsuit in New York State that seeks to nullify or invalidate any part of this Stipulation.
R. Should any nonmaterial provision of this Stipulation be found by a court to be invalid or unenforceable, the validity of other provisions of this Stipulation shall not be affected or impaired, and such other provisions shall be enforced to the maximum extent possible.
S. Except as otherwise provided herein, each Settling Party shall bear its own costs. T. The Settling Parties agree that, prior to final approval by the Court of the Settlement, any disputes or issues that may arise between the Settling Parties relating to Attorney’s Fees may be referred to Magistrate Judge Andrew J. Peck. U. The Settling Parties stipulate and agree that all litigation activity in the Action affecting the Settling Defendants, except that contemplated herein shall be stayed and all hearings, deadlines, and other proceedings in the Action, except any Fairness Hearing or other matters related to the Settlement, shall be taken off calendar. V. Nothing contained herein shall be deemed to constitute a policy or practice of the City Defendants or the City of New York or of the State Defendants or the State of New York. W. This Stipulation shall not be admissible in, nor is it related to, any other litigation or settlement negotiations, except in an action or proceeding by Class Members to enforce the terms of this Stipulation.
18

Case 1:12-cv-09162-KBF Document 224-3 Filed 03/30/15 Page 20 of 21

IN WITNESS WHEREOF,the parties hereto have caused this Stipulation to be executed, by

their duly authorized attorneys, as oi'Mareh 30,201 S.

THE L~CiAL AID 50CT~;'1'Y

LACHAR.Y W,CARTER Corporation Counsel ofthe City ofNew Yark

Adriene Holder Judith Uoldiner Kenr~eih Stephens Sumani Lanka l99 Water Street Naw Xark, NY 10038 Tel:(212)577-3300
and
CiI.BSON, UUNN & CRUTCHER L.LP

,. ,r

`"

.~

_

Y-

.~c. ~~....,.. ~_

_

_.._...

:_.._- --.......__.

Thomas B, Roberts Assistant Corporation Counsel 100 Church Street New York, NY 1000? Tel:(2l2)356-0872

Attnrneyfor the City Defendants

ERIC T.SCHNE[DERMAN Attorney General oftl~e State ofNew York

By:

_

_ _

Randy M. Mastro coutan, u.rots Christine Demana Seth M. Rokosky 200 Park Avenue New York, NY 1 O l h6 Tel.(2l2} 351-4000

Attz~r~neysfor bead Pluintiffi~ crud the Cluss

By:
.Tohn Gasior Assistant Attorney General 12013roadway, 24th F{oor New York, NY 10271 Tel;(212)q16-8570
Attor~neyfor the State Defendants

SC) C~RDCRED

U.S.D,1. !~1

Case 1:12-cv-09162-KBF Document 224-3 Filed 03/30/15 Page 21 of 21

 
 Case 1:12-cv-09162-KBF Document 226 Filed 03/31/15 Page 1 of 5
Case 1:12-cv-09162-KBF Document 224-1 Filed 03/30/15 Page 2 of 6

Tl . -. -...---·-- · ,. .. ,.--•-.,.,.....-..,.._~----..u _,_..,.,~_..,,._.,"<.._•• siiCSJ;~\~--

•·---·-e'

• ' __

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------x
ALECHEA TONEY-DICK, X.T., RENEE MOORE, and SHERRY HANAN, individually and on behalf of others similarly situated,

. DOCU'.\iE'.\'1

1

ELECTRO~ICALL':i· FILED jl

. DOC #:

---·-- __,, 11

j1 D.\TEFILf:LMJ\R 3 l 2015 r
,4,::.::::·::.=~:·.:~:-.:~;.:_ . -..:··-_:,:::~~ ::·.. :...·::".:. '·- ~ --·

Plaintiffs,

v.

ROBERT DOAR, in his official capacity as

Commissioner of the New York City Human

Resources Administration; and THE NEW

YORK CITY HUMAN RESOURCES

ADMINISTRATION; KRISTIN M. PROUD,

in her official capacity as Acting

.

Commissioner of the New York State Office of :

Temporary and Disability Assistance; and the ·

NEW YORK STATE OFFICE OF

TEMPORARY AND DISABILITY

ASSISTANCE; and TOM VILSACK, in his

official capacity as Secretary of the United

States Department of Agriculture; and the

UNITED STATES DEPARTMENT OF

AGRICULTURE,

No. 12 Civ. 9162 (KBF) (AJP)

Defendants.

----------------------------------------------------------x
7fPROPOSEDt ORDER GRANTING PRELIMINARY APPROVAL
// OF CLASS ACTION SETTLEMENT AND CLASS NOTICE

WHEREAS, this action was brought as a class action pursuant to Rule 23 of the Federal

Rules of Civil Procedure; WllEREAS, by Order entered September 16, 2013, this Court certified two subclasses
pursuant to Fed. R. Civ. P. 23(b)(2) and appointed Gibson, Dunn & Crutcher LLP and The Legal

Aid Society as class counsel for both subclasses;

Case 1:12-cv-09162-KBF Document 226 Filed 03/31/15 Page 2 of 5 Case 1:12-cv-09162-KBF Document 224-1 Filed 03/30/15 Page 3 of 6
WHEREAS, on February 28, 2014, Steven Banks was appointed as the Commissioner of the New York City Human Resources Administration ("HRA"), and on January 26, 2015, Sharon Devine was appointed as the Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance ("OTDA'');
WHEREAS, the Settling Parties have entered into a Stipulation and Order of Settlement (the ""Settlement Agreement") filed concurrently herewith, which, if approved by the Court, would dispose of the claims made in this action by Plaintiffs against the City Defendants and State Defendants; and
WHEREAS, counsel for Plaintiffs and the City and State Defendants have jointly moved the Court, pursuant to Fed. R. Civ. P. 23(e), for (i) preliminary approval of the Settlement Agreement, (ii) approval of the Notice of Proposed Settlement of Class Action, attached hereto as Exhibit B (the "Class Notice"), and (iii) approval of a plan of posting and distribution, set forth in Paragraphs 6 and 7 below, by which the Class Notice shall be provided to members of the two subclasses;
NOW, THEREFORE, IT IS ORDERED THAT: I. Capitalized terms in this Order not defined herein shall have the meanings set forth in the Settlement Agreement. 2. The Court has jurisdiction over the subject matter of this Action and personal jurisdiction over the Plaintiffs, the subclasses, and the City and State Defendants. 3. The Court hereby grants preliminary approval of the terms and conditions contained in the Settlement Agreement filed concurrently herewith. The Court preliminarily finds that the terms of the Settlement Agreement appear to be within the range of possible approval, pursuant to Fed. R. Civ. P. 23(e) and applicable law.
2

Case 1:12-cv-09162-KBF Document 226 Filed 03/31/15 Page 3 of 5 Case 1:12-cv-09162-KBF Document 224-1 Filed 03/30115 Page 4 of 6
4. A hearing pursuant to Fed. R. Civ. P. 23(e) shall be held for purposes of determining whether the proposed Settlement Agreement is fair, reasonable, and adequate, and should be approved by the Court (the "Fairness Hearing"). The Fairness Hearing shall take place before the Honorable Katherine B. Forrest, U.S. District Court, Southern District of New York, Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York 10007, on June 25, 2015, at 1:00 pm. The Fairness Hearing may be adjourned or continued from time to time without further notice.
5. The Court hereby approves the Class Notice, attached hereto as Exhibit B, for both subclasses.
6. From at least sixty (60) days prior to the Fairness Hearing until no earlier than June 25, 2015: (a) the City Defendants shall post the Class Notice, in English and Spanish, in the client waiting areas at HRA Job Centers and SNAP Centers; (b) the State Defendants shall post the Class Notice, in English and Spanish, in the client waiting area at OTDA's Boerum Place, Brooklyn, New York fair hearing center. The Class Notice posted in these locations shall be 8.5'' x 11" or 8.5'' x 14," if necessary. From at least sixty (60) days prior to the Fairness Hearing until no earlier than June 25, 2015, the City Defendants, State Defendants, and The Legal Aid Society shall also post the Class Notice, in English and Spanish, on their web sites at http://www.nyc.gov/hra, http://www.otda.ny.gov/, and www.legal-aid.org, respectively, with a hyperlink to the class action settlement documents or other clear indication that class action settlement documents are posted on the web sites. The City Defendants and State Defendants shall provide Plaintiffs' Counsel with electronic copies of the Class Notice, in English and Spanish, sent by e-mail, which from at least sixty (60) days prior to the Fairness Hearing until no earlier than June 25, 2015, The Legal Aid Society shall post in its waiting rooms. Plaintiffs'
3
111111_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Case 1:12-cv-09162-KBF Document 226 Filed 03/31/15 Page 4 of 5 Case 1:12-cv-09162-KBF Document 224-1 Filed 03/30/15 Page 5 of 6

Counsel may also distribute copies of the Class Notice to other legal services providers and community based organizations that serve members of the subclasses with a request that those providers and organizations take steps to bring the Class Notice to the attention of potential class

members. 7.

The Court finds that posting of the Class Notice as provided in Paragraph 6

constitutes reasonable notice to the members of the two subclasses and that the members of the

two subclasses will be barred by the settlement of this class action pursuant to Fed. R. Civ. P.

23(c)(2) and 23(e)(l). 8. Any member of the Plaintiff classes may appear at the Fairness Hearing on June
25, 2015 at 1:00 pm, in person or by counsel, and object to the Settlement Agreement or give reasons why the Settlement Agreement should not be approved as fair, reasonable, and adequate.
9. Any member of the Plaintiff classes may also object to or comment on the

Settlement Agreement by submitting objections in writing. Objections or comments must be
mailed at least twenty-one (21) days prior to the Fairness Hearing, to the Court at the address
listed in Paragraph 4 above, and a copy simultaneously served on or mailed to the following:
Sumani Lanka 199 Water Street New York, NY 10038
Attorney.for Lead Plaintiffs and the Class
Any Class Member who fails to properly and timely file and serve objections or comments shall
be foreclosed from objecting to the proposed Settlement Agreement, unless otherwise ordered by

the Court.

4

Case 1:12-cv-09162-KBF Document 226 Filed 03/31/15 Page 5 of 5 Case 1:12-cv-09162-KBF Document 224-1 Filed 03/30/15 Page 6 of 6

I0. The Settling Parties shall jointly file a memorandum of law in support of final approval of the Settlement Agreement and a proposed Judgment by June 11, 2015.
11. If for any reason the Court does not sign the Settlement Agreement or enter the proposed Judgment without material alteration, the Settlement Agreement and all evidence and proceedings in connection with the Settlement Agreement shall be null and void nunc pro tune.
12. The Court further orders that, pending further order of this Court, all proceedings in this Action except those contemplated herein and in the Settlement Agreement shall be stayed. IT IS SO ORDERED.

11r si ~ Dated:

t

Ne\v Y rk, New York

/L:_;?, 7-_
Katherine B. Forrest United States District Court Judge

5
lllllllllllmllll 111111111 II_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

 
 Case 1:12-cv-09162-KBF Document 236 Filed 07/07/15 Page 1 of 5
Case 1:12-cv-09162-KBF Document 231-1 Filed 06/11/15 Page 2 of 6

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------)(
ALECHEA TONEY-DICK, X.T., RENEE MOORE, and SHERRY HANAN, individually and on behalf of others similarly situated,
Plaintiffs,
v.

'lJSDCSDNY DOC1JMENT ELECTRONICALLY FILED
DDAOTCE#:F_IL_E~D-:J-lJ-I -Q~-] -2-01-5

ROBERT DOAR, in his official capacity as

Commissioner of the New York City Human

Resources Administration; and THE NEW

YORK CITY HUMAN RESOURCES

ADMINISTRATION; KRISTEN M. PROUD,

in her official capacity as Acting

.

Commissioner of the New York State Office of :

Temporary and Disability Assistance; and the ·

NEW YORK STATE OFFICE OF

TEMPORARY AND DISABILITY

ASSISTANCE; and TOM VILSACK, in his

official capacity as Secretary of the United

States Department of Agriculture; and the

UNITED STATES DEPARTMENT OF

AGRICULTURE,

No. I 2-cv-9162 (KJ3F) (AJP)

Defendants.
----------------------------------------------------------)(

'4BOPDSFDJ JUDGMENT APPROVING CLASS ---ACTION SETTLEMENT AND DISMISSING ACTION

KATHERINE B. FORREST, District Judge.

WHEREAS, this action was brought as a class action pursuant to Rule 23 of the Federal

Rules of Civil Procedure;

WHEREAS, by Order dated September 16, 2013, this Court certified two subclasses

pursuant to Federal Rule of Civil Procedure 23 and appointed Gibson, Dunn & Crutcher LLP and

The Legal Aid Society as class counsel for both subclasses;

WHEREAS, on February 28, 2014, Steven Banks was appointed as the Commissioner of

11111_ _ _ _ _ _ _ _ _ _ _ __

Case 1:12-cv-09162-KBF Document 236 Filed 07/07/15 Page 2 of 5
Case 1:12-cv-09162-KBF Document 231-1 Filed 06/11/15 Page 3 of 6
the New York City Human Resources Administration ("HRA"), and on January 26, 2015, Sharon Devine was appointed as the Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance ("OTDA");
WHEREAS, the Settling Parties have entered into a Stipulation and Order of Settlement (the "Settlement Agreement") dated and filed on March 30, 2015, Dkt 224-3, which, if approved by the Court, would dispose of the claims made in this Action by Plaintiffs against the City Defendants and State Defendants;
WHEREAS, by Order dated March 31, 2015, this Court granted Preliminary Approval of the Parties' Settlement Agreement and Class Notice in this Action;
WHEREAS, notice to the Class Members was provided substantially in accordance with the Settlement Agreement and the Court's March 31, 2015 Order granting Preliminary Approval of the Class Action Settlement and Class Notice;
WHEREAS, notice to the federal, state, and territorial Attorneys General was provided on April 6, 2015 in accordance with the Class Action Fairness Act, 28 U.S.C. §1715, and judgment may be entered on or after July 7, 2015;
WHEREAS, a Fairness Hearing on the proposed Settlement has been duly held on June 25, 2015 before this Court pursuant to Federal Rule of Civil Procedure 23(e)(2) to determine (1) whether the terms and conditions of the Settlement Agreement are fair, reasonable, and adequate for the settlement of all claims asserted by the members of the Class; and (2) whether judgment should be entered dismissing the Plaintiffs' Second Amended Complaint on the merits; and
WHEREAS, the Court, having considered all matters submitted to it at the Fairness Hearing, along with all prior submissions by the parties regarding the Settlement Agreement, and all matters submitted by any Attorney General on or before July 6, 2015, and otherwise having
2

Case 1:12-cv-09162-KBF Document 236 Filed 07/07/15 Page 3 of 5
Case 1:12-cv-09162-KBF Document 231-1 Filed 06/11/15 Page 4 of 6
determined the fairness, reasonableness, and adequacy of the Settlement Agreement on the claims of members ofthe Class;
NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 1. Capitalized terms in this Order not defined herein shall have the meanings set forth in the Settlement Agreement. 2. The Court has jurisdiction over the subject matter of this Action and personal jurisdiction over the Plaintiffs, the subclasses, and the City and State Defendants. 3. The Court hereby grants Plaintiffs' Unopposed Motion for Final Approval of Class Action Settlement and enters Final Judgment in the Action effective July 7, 2015. 4. The Settlement Agreement is approved as fair, reasonable, and adequate, and in the best interests of the members of the Class. The parties to the Settlement Agreement are directed to consummate the Settlement in accordance with its terms and provisions. 5. The Settlement Agreement is procedurally fair, resulting from arm's-length negotiations by the parties for a period of sixteen months. 6. The Settlement Agreement is substantively fair and meets the criteria set forth by the Second Circuit in City ofDetroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974), because:
(a) the Settlement Agreement grants relief to all members of the Class without subjecting them to the risks, complexity, duration and expense of continuing litigation;
(b) the reaction of the Class to the Settlement Agreement has been overwhelmingly favorable as there have been no objections to weigh against approval;
(c) the state of the proceedings, the number of dispositive and discovery motions briefed, the amount of discovery completed, and negotiations to date have enabled the parties to evaluate the nature and scope of the potential relief to the Class Members;
3

Case 1:12-cv-09162-KBF Document 236 Filed 07/07/15 Page 4 of 5
Case 1:12-cv-09162-KBF Document 231-1 Filed 06/11/15 Page 5 of 6
(d) the risks associated with establishing liability and entitlement to relief, and maintaining the Action through trial weigh in favor of the Settlement Agreement; and
(e) the Settlement Agreement is within the reasonable range of recovery given the best possible outcome, along with the risks associated with litigation, and it provides substantial benefits to members of the Class. Were this action to proceed to trial, the Class would be required to wait even longer for relief, and any such relief would not be guaranteed.
7. Notice was given substantially as prescribed in the Court's Order Granting Preliminary Approval of Class Action Settlement and Class Notice, dated March 31, 2015. In addition, in compliance with the Class Action Fairness Act, 28 U.S.C. §1715, defendants provided notice of the proposed Settlement to all federal, state, and territorial Attorneys General on April 6, 2015. See Dkt. 228-29. Such notice provided the best notice practicable under the circumstances. Said notice provided due and adequate notice of these proceedings and the matters set forth herein, including the Settlement Agreement, to all persons entitled to such notice, and said notice fully satisfied the requirements of Federal Rule of Civil Procedure 23, the Class Action Fairness Act, the Constitution of the United States, and any other applicable law. A full opportunity has been offered to the members of the Class and to federal, state, and territorial Attorneys General to object to the proposed Settlement Agreement and to participate in the hearing thereon, and it is hereby determined that all Class Members are bound by this judgment.
8. This Action is hereby dismissed with prejudice as against the City Defendants and State Defendants pursuant to Federal Rules of Civil Procedure 4 I(a)(l) and 23(e) and the terms of Section VI of the Settlement Agreement. Upon entry of this Order, the claims held by each settling Class Member against the City and State Defendants, are fully, finally, and forever relinquished and discharged pursuant to Section VI of the Settlement Agreement.
4
,.,, ____________________________ _

Case 1:12-cv-09162-KBF Document 236 Filed 07/07/15 Page 5 of 5
Case 1:12-cv-09162-KBF Document 231-1 Filed 06/11/15 Page 6 of 6
9. The Settling Parties have not yet stipulated to reach agreement regarding attorneys' fees. Unless they are able to do so, Plaintiffs' Counsel shall file a motion for attorneys' fees within sixty (60) days of this Order. The City and State Defendants shall respond within thirty (30) days of any motion. Plaintiffs' Counsel shall file any reply within seven (7) days of the City and State Defendants' response. If at any time the Settling Parties agree on an amount of attorneys' fees and/or costs, they shall promptly notify the Court.
10. This Court shall retain jurisdiction over this Action to the extent set forth by the provisions of Section I of the Settlement Agreement. If the City Defendants convene a Disability Advisory Community Panel, the Settling Parties shall submit a joint letter so advising the Court and requesting that the Court's jurisdiction over the Settlement terminate upon (a) 12 months from the Effective Date or (b) the date such request is so-ordered by the Court, whichever is later.
11. There is no just reason for delay in the entry of this Judgment. Immediate entry of final judgment against the City Defendants and State Defendants by the Clerk of the Court is expressly directed pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. The Federal Defendants are not a party to the Settlement Agreement and not bound by this judgment.
SO ORDERED: Dated: New York, New York July_:_ }- _ _ _ _, 2015
Katherine B. Forrest United States District Judge
5

 
 Case 1:12-cv-09162-KBF Document 244 Filed 12/28/15 Page 1 of 8

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------x
ALECHEA TONEY-DICK, X.T., RENEE MOORE, and SHERRY HANAN, individually and on behalf of others similarly situated,

USDC SDNY
DOCU11ENT ELECTRONICALLY FILED DOC#: ____________
DATE FILED: December 28, 2015

Plaintiffs,

-against-

ROBERT DOAR, in his official capacity as Commissioner of the New York City Human Resources Administration; and THE NEW YORK CITY HUMAN RESOURCES ADMINISTRATION; KRISTIN M. PROUD, in her official capacity as Acting Commissioner ofthe New York State Office of Temporary and Disability Assistance; and the NEW YORK STATE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE; and TOM VILSACK, in his official capacity as Secretary of the United States Department of Agriculture; and the UNITED STATES DEPARTMENT OF
AGRICULTURE,

No. 12-cv-9162 (KBF) (AJP)
STIPULATION AND ORDER OF SETTLEMENT OF ATTORNEY'S FEES, COSTS, AND DISBURSEMENTS

Defendants.
----------------------------------------------------------X
WHEREAS, Plaintiffs Alechea Toney-Dick, X.T. , Renee Moore, and Sherry Hanan

(collectively "Class Representatives") fi led a complaint on behalf of themselves and of a class of

similarly situated individuals (the "Second Amended Complaint"); and

WHEREAS, the Second Amended Complaint asserted claims against the New York City

Human Resources Administration ("HRA"); Steven Banks, as the Commissioner of HRA

("Commissioner Banks") (collectively with HRA, "City Defendants"); the New York State

Office of Temporary and Disability Assistance ("OTDA"); and Samuel D. Roberts, as

Case 1:12-cv-09162-KBF Document 244 Filed 12/28/15 Page 2 of 8
Commissioner ofOTDA ("Commissioner Roberts") (collectively with OTDA, "State Defendants"; and City Defendants and State Defendants, collectively, "Defendants")'; and
WHEREAS, the Court certified a class of Plaintiffs pursuant to Federal Ru le of Civil Procedure 23(a) and (b)(2) ("Class Plaintiffs"), and appointed The Legal Aid Society and Gibson, Dunn & Crutcher, LLP as counsel for Class Plaintiffs ("Class Counsel"); and
WHEREAS, on July 7, 2015, the Court so-ordered the Stipulation and Order of Settlement ("Stipulation" ), which reflected the settlement entered into by the parties resolving all claims in the Second Amended Complaint except attorney's fees, costs, and disbursements; and
WHEREAS, Class Plaintiffs and Defendants now seek to resolve the issue of attorney's fees, costs, and disbursements without further proceedings on terms and conditions just and fair to all parties; and
WHEREAS, the parties are entering into this Fee Stipulation solely for the purpose of settling the disputes between them concerning attorney's fees, costs, and disbursements and to avoid further litigation, and without Defendants admitting any fault or liability;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND ORDERED: 1. The S tate of New York, on behalf of State Defendants, shall pay the gross sum of one hundred eighty thousand dollars and no cents ($180,000.00) ("State Fee Payment") to Class Counsel, and Class Plaintiffs and Class Counsel agree to accept the State Fee Payment in full satisfaction of aJI claims against State Defendants for attorney's fees, costs, and disbursements that have been or wi ll be incurred in connection with this action. 2. Payment of the State Fee Payment shall be made by check, issued in the amount that fo llows, made payable to the entity that fo llows, and at the addresses that follows:
1 Steven Banks and Samuel D. Roberts are the successors in office to Robert Doar, as Commissioner of HRA and Kristin Proud, as Commissioner ofOTDA, respectively, and thus are automatically substituted as parties pursuant to Federal Rule of Civil Procedure 25(d)(l ).
2

Case 1:12-cv-09162-KBF Document 244 Filed 12/28/15 Page 3 of 8
$180,000.00, to: THE LEGAL AID SOCIETY Attention: Kenneth Stephens 199 Water Street New York, N.Y. 10038
3. The City of New York, on behalf of City Defendants, shall pay the gross sum of two hundred seventy thousand dollars and no cents ($270,000.00) ("City Fee Payment") to Class Counsel, and Class Plaintiffs and Class Counsel agree to accept the City Fee Payment in fu ll satisfaction of all claims against City Defendants for attorney's fees, costs, and disbursements that have been or wi ll be incurred in connection with this action.
4. Payment of the City Fee Payment shall be made by check, issued in the amount that fo llows, made payable to the entity that follows, and at the addresses that follows: $270,000.00 to:
THE LEGAL AID SOCIETY Attention: Kenneth Stephens 199 Water Street New York, N.Y. 10038 5. Payment of the amount set forth in paragraph I is subject to the approval of all appropriate New York State officials in accordance with New York Public Officers Law § 17(3)(a). In the event such approval is not obtained, counsel for State Defendants shall so notify Class Counsel within seven (7) days of the disapproval. In the event of such disapproval, Class Counsel shall have ninety (90) days from such notice within which to make a motion seeking attorney's fees, costs, and disbursements from State Defendants. 6. The Class Representatives, on behalf of Class Plaintiffs, and Class Counsel shall
3

Case 1:12-cv-09162-KBF Document 244 Filed 12/28/15 Page 4 of 8
promptly execute and deliver to counsel for State Defendants any and all documents and information reasonably necessary to effectuate the State Fee Payment, including, but not limited to, any requisite payment vouchers.
7. Class Plaintiffs and Class Counsel shall execute and deliver to City Defendants' attorney all documents necessary to effect this settlement, including, without limitation, the signed release from Ms. Toney-Dick or her authenticated representative promised in section VI of the Stipulation and Order of Settlement in this matter filed as record document 224-3 on March 30, 2015. The payment set forth in paragraph 4 is subject to and conditioned on delivery of sucb documents to City Defendants' undersigned attorney.
8. In the event the payments described in paragraphs 2 and 4 of this Fee Stipulation are not made by the one hundred twentieth (120th) day after receipt by Defendants' counsel of a so-ordered copy of this Fee Stipulation and all documents and information required under paragraphs 6 and 7 of this Fee Stipulation, interest shall accrue on any unpaid sums at the
statutory rate prescribed by 28 U.S.C. § 1961 commencing on the one hundred twenty-first
(!21st) day. 9. Class Plaintiffs and Class Counsel agree that any taxes, or interest or penalties on
taxes, on the payments specified in paragraphs 1 through 4 of this Fee Stipulation shall be the sole and complete responsibility of Class Counsel, and that Class Counsel shall have no claim, right, or cause of action against Defendants or the State and City ofNew York on account of any and all such taxes, interest, or penalties.
10. Class Plaintiffs and Class Counsel agree that neither Defendants, the State and City of New York (including, but not limited to, any and all agencies, departments, and subdivisions thereof), nor any of their past, present, or future officials, employees, or agents,
4

Case 1:12-cv-09162-KBF Document 244 Filed 12/28/15 Page 5 of 8
whether in their individual or official capacities, shall be responsible fo r any liens of any kind (including, but not limited to, any and all workers' compensation, tax, or child support liens) which may attach to the payments set forth in this Fee Stipulation. Class Plaintiffs and Class Counsel shall have no claim, right, or cause of action against Defendants, the State and City of New York (including, but not limited to, any and all agencies, departments, and subdivisions thereof), or any of their past, present, or future officials, employees, or agents, whether in their individual or official capacities, on account of such liens, and agree that they will defend, indemnify, and hold harmless State Defendants, the State and City of New York (including, but not limited to, any and all agencies, departments, and subdivisions thereof), and any of their past, present, or future officials, employees, or agents, whether in their individual or official capacities, for th e satisfaction of any such liens.
11. In consideration of the payment of the State Fee Payment and the City Fee Payment, Class Plaintiffs and Class Counsel, the Legal Aid Society and Gibson Dunn & Crutcher, LLP, on their own behalf and on behalf of their respective heirs, executors, administrators, representatives, attorneys, successors, and assigns of each of themselves and on behalf of future Class Plaintiffs hereby jointly and severally release and forever discharge State Defendants, the State of New York, City Defendants, and the City of New York, including without limitation their past, present and future officials, employees, departments, agencies, representatives, directors and agents, their successors and assigns and their respective heirs, executors, administrators, personal representatives, and transferees, and each of them from any and all claims for past, present, or future attorney's fees, costs, and disbursements arising from or in connection with the above-captioned action.
12. Nothing contained in this Fee Stipulation shall be deemed to be an agreement or
5

Case 1:12-cv-09162-KBF Document 244 Filed 12/28/15 Page 6 of 8

an admission by any of the parties as to the reasonableness of the number of hours spent or the

particular hourly rates claimed by Class Counsel, the Legal Aid Society and Gibson Dunn &

Crutcher, LLP. 13. The agreement regarding payment of attorney's fees, costs, and disbursements set

forth in this Fee Stipulation is solely for the purpose of settlement of Class Plaintiffs' and Class

Counsel's claims for attorney's fees, costs, and disbursements and does not reflect the positions

of the parties in any other judicial or administrative proceeding. Nothing contained in this Fee

Stipulation shall be deemed, implied, or construed to be a policy, custom, or procedure of State

Defendants, the State of New York, City Defendants, the City of New York, or any of their

agencies, or of Class Plaintiffs or Class Counsel, the Legal Aid Society and Gibson Dunn &

Crutcher, LLP. 14. This Fee Stipulation contains all of the terms and conditions agreed upon by the

parties regarding the payment by Defendants of attorney's fees, costs, and disbursements in this

action. No oral agreement concerning attorney's fees, costs, and disbursements entered into at

any time, nor any other written agreement concerning attorney's fees, costs, and disbursements

entered into prior to the execution of this Fee Stipulation shall be deemed to exist, to bind the parties, or to vary the terms and conditions set forth in this Fee Stipulation.

15. All parties to this Fee Stipulation have participated in its drafting; consequently,

any ambiguity shall not be construed for or against any party.

16. If any date or period of time described in this Fee Stipulation falls or ends on a

public holiday or on a weekend, the date or period of time shall be extended to the next business

day. 17.

This Fee Stipulation is final and binding upon the parties, their successors, and

6

Case 1:12-cv-09162-KBF Document 244 Filed 12/28/15 Page 7 of 8

their assigns.

18. This Fee Stipulation may be executed in counterparts, and a signature received by

facsimile or email shall be deemed valid for all purposes.

-J:l- • Dated: New York, New York

December

2015

Thomas B. Roberts Assistant Corporation Counsel New York City Law Department 100 Church Street, Room 2-192 New York, New York I 0007 (212) 356-0872 ThRobert@law.nyc.gov

John Gasior Assistant Attorney General New York State Attorney General's Office 120 Broadway, 24th Floor New York, New York 10271 (212) 416-8570 john.gasior@ag.ny.gov

By: , ~ ,. /.../..._~,. ~ Thomas B. Roberts
Adriene Holder Judith Goldiner Kenneth Stephens Sumani Lanka 199 Water Street New York, NY 10038 (212) 577-3300
By:
Kenneth Stephens The Legal Aid Society

...... By: ___________________ John Gasior
Randy M. Mastro Goutam U. Jois Cluistine Demana Seth M. Rokosky 200 Park Avenue New York, NY 10166 (212) 351-4000
By: ---------------------
Goutam U. Jois Gibson, Dunn & Crutcher, LLP

SO ORDERED, this _ __ _ _ day of - - ------ - ---- 2015.

Honorable Katherine B. Forrest United States District Judge
7

Case 1:12-cv-09162-KBF Document 244 Filed 12/28/15 Page 8 of 8

28th

December

 
 Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 1 of 30
CLOSED,ECF,RELATED
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:12−cv−09162−KBF

Toney−Dick v. Doar et al Assigned to: Judge Katherine B. Forrest Related Case: 1:05−cv−06920−KBF Cause: 42:12131 Americans with Disabilities Act of 1990
Plaintiff

Date Filed: 12/17/2012 Date Terminated: 12/28/2015 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Alechea Toney−Dick on behalf of herself and all others similarly situated

represented by Randy M. Mastro Gibson, Dunn & Crutcher, LLP (NY) 200 Park Avenue, 48th Floor New York, NY 10166 212−351−5391 Fax: 212−351−5328 Email: rmastro@gibsondunn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christine Louise Demana Gibson, Dunn & Crutcher, LLP (NY) 200 Park Avenue, 48th Floor New York, NY 10166 (212)−351−2636 Fax: (212)−716−0836 Email: cdemana@gibsondunn.com ATTORNEY TO BE NOTICED

Goutam Umesh Jois Gibson, Dunn & Crutcher, LLP (NY) 200 Park Avenue, 48th Floor New York, NY 10166 (212)−351−4000 Fax: (212) 351−4035 Email: gjois@gibsondunn.com ATTORNEY TO BE NOTICED

John Peter Gasior Office of the Attorney General, New York State 120 Broadway 24th Floor New York, NY 10271 212−416−8570 Fax: 212−416−6077 Email: john.gasior@ag.ny.gov ATTORNEY TO BE NOTICED

Justin Solomon Nematzadeh Robbins Geller Rudman & Dowd LLP 58 South Services Road, Suite 200 Melville, NY 11747 631−367−7100 Fax: 631−367−1173 Email: jnematzadeh@rgrdlaw.com TERMINATED: 12/01/2014

Kenneth Richard Stephens The Legal Aid Society (Civil Div. NYC)

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 2 of 30

199 Water Street 3rd Floor New York, NY 10038 212−440−4257 Fax: 212−509−8761 Email: KStephens@legal−aid.org ATTORNEY TO BE NOTICED

Seth Rokosky Gibson, Dunn & Crutcher, LLP (NY) 200 Park Avenue New York, NY 10166 (212)−351−4089 Email: Seth.Rokosky@ag.ny.gov ATTORNEY TO BE NOTICED

Sumani Vani Lanka Legal Aid Society 199 Water Street, 3rd Floor New York, NY 10038 212−577−3314 Fax: 212−616−9468 Email: svlanka@legal−aid.org ATTORNEY TO BE NOTICED

Susan R. Sternberg The Legal Aid Society 199 Water Street New York, NY 10038 (212)−577−3263 Fax: (646)−616−4762 Email: srsternberg@legal−aid.org ATTORNEY TO BE NOTICED

Plaintiff X.T.

represented by Randy M. Mastro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christine Louise Demana (See above for address) ATTORNEY TO BE NOTICED

Goutam Umesh Jois (See above for address) ATTORNEY TO BE NOTICED

Justin Solomon Nematzadeh (See above for address) TERMINATED: 12/01/2014

Kenneth Richard Stephens (See above for address) ATTORNEY TO BE NOTICED

Seth Rokosky (See above for address) ATTORNEY TO BE NOTICED

Sumani Vani Lanka (See above for address) ATTORNEY TO BE NOTICED

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 3 of 30

Plaintiff
Sherry Hanan individually and on behalf of all others similarly situated

represented by Randy M. Mastro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christine Louise Demana (See above for address) ATTORNEY TO BE NOTICED

Goutam Umesh Jois (See above for address) ATTORNEY TO BE NOTICED

John Peter Gasior (See above for address) ATTORNEY TO BE NOTICED

Justin Solomon Nematzadeh (See above for address) TERMINATED: 12/01/2014

Kenneth Richard Stephens (See above for address) ATTORNEY TO BE NOTICED

Seth Rokosky (See above for address) ATTORNEY TO BE NOTICED

Sumani Vani Lanka (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Renee Moore

represented by Randy M. Mastro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christine Louise Demana (See above for address) ATTORNEY TO BE NOTICED

Goutam Umesh Jois (See above for address) ATTORNEY TO BE NOTICED

John Peter Gasior (See above for address) ATTORNEY TO BE NOTICED

Justin Solomon Nematzadeh (See above for address) TERMINATED: 12/01/2014

Kenneth Richard Stephens (See above for address) ATTORNEY TO BE NOTICED

Seth Rokosky (See above for address) ATTORNEY TO BE NOTICED

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 4 of 30
Sumani Vani Lanka (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Commissioner Robert Doar in his official capacity as Commissioner of the New York City Human Resources Administration TERMINATED: 07/07/2015
Defendant The New York City Human Rights Resources Administration TERMINATED: 07/07/2015
Defendant Kristin Proud in her official Capacity as Acting Commissioner of the New York State Office of Temporary and Disability Assistance

represented by Emily Sweet NYC Law Department, Office of the Corporation Counsel (NYC) 100 Church Street New York, NY 10007 (212) 788−1171 Fax: (212) 788−8877 Email: esweet@law.nyc.gov
John Peter Gasior (See above for address)
Serena Mabel Longley NYC Law Department 100 Church Street Rm. New York, NY 10007 (212) 788−0957 Fax: (212) 788−8877 Email: slongley@law.nyc.gov
Thomas B. Roberts The CIty of New York Law Department 100 Church Street New York, NY 10007 212−356−1000 Fax: 212−788−8877 Email: throbert@law.nyc.gov ATTORNEY TO BE NOTICED
represented by Emily Sweet (See above for address)
John Peter Gasior (See above for address)
Serena Mabel Longley (See above for address)
Thomas B. Roberts (See above for address) ATTORNEY TO BE NOTICED
represented by John Peter Gasior (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Fang State of New York, Office of the Attorney General 120 Broadway, 24th Floor New York, NY 10017 (212) 416−8656

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 5 of 30

Fax: (212) 416−6009 Email: linda.fang@ag.ny.gov ATTORNEY TO BE NOTICED

Defendant
The New York State Office of Temporary and Disability Assistance

represented by John Peter Gasior (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda Fang (See above for address) ATTORNEY TO BE NOTICED

Defendant
Tom Vilsack in his official capacity as Secretary of the United States department of Agrculture TERMINATED: 11/14/2013

represented by Tara Marie La Morte U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212) 637−2746 Fax: (212) 637−2730 Email: tara.lamorte2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
United States Department of Agriculture TERMINATED: 11/14/2013

represented by Tara Marie La Morte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/17/2012 12/17/2012 12/17/2012 12/17/2012 12/17/2012
12/19/2012

# Docket Text
1 COMPLAINT against Robert Doar, The New York City Human Rights Resources Administration. (Filing Fee $ 350.00, Receipt Number 465401055558)Document filed by Alechea Toney−Dick.(msa) (Entered: 12/19/2012)
SUMMONS ISSUED as to Robert Doar, The New York City Human Rights Resources Administration. (msa) (Entered: 12/19/2012)
Case Designated ECF. (msa) (Entered: 12/19/2012)
CASE REFERRED TO Judge Katherine B. Forrest as possibly related to 1:05−cv−6920. (msa) (Entered: 12/19/2012)
2 STANDING ORDER IN RE PILOT PROJECT REGARDING CASE MANAGEMENT TECHNIQUES FOR COMPLEX CIVIL CASES IN THE SOUTHERN DISTRICT OF NEW YORK (See M−10−468 Order filed November 1, 2011). This case is hereby designated for inclusion in the Pilot Project Regarding Case Management Techniques for Complex Civil Cases in the Southern District of New York (the Pilot Project), unless the judge to whom this case is assigned determines otherwise. This case is designated for inclusion in the Pilot Project because it is a class action, an MDL action, or is in one of the following Nature of Suit categories: 160, 245, 315, 355, 365, 385, 410, 830, 840, 850, 893, or 950. The presiding judge in a case that does not otherwise qualify for inclusion in the Pilot Project may nevertheless designate the case for inclusion in the Pilot Project by issuing an order directing that the case be included in the Pilot Project. The description of the Pilot Project, including procedures to be followed, is attached to this Order. (Signed by Judge Loretta A. Preska on 10/31/2011) (msa) Modified on 12/19/2012 (msa). (Entered: 12/19/2012)
3 DECLARATION of John Buhta in Opposition. Document filed by Robert Doar, The New York City Human Rights Resources Administration. (Attachments: # 1 Exhibit

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 6 of 30

12/19/2012 12/20/2012 12/21/2012 12/21/2012 12/21/2012 12/21/2012
12/21/2012
12/21/2012 12/21/2012 01/07/2013
01/07/2013 01/08/2013 01/08/2013

A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Buhta, John) Modified on 12/19/2012 (msa). (Entered: 12/19/2012)
4 DECLARATION of Roy Esnard in Opposition. Document filed by Robert Doar, The New York City Human Rights Resources Administration. (Attachments: # 1 Exhibit A)(Buhta, John) Modified on 12/19/2012 (msa). (Entered: 12/19/2012)
5 DECLARATION of Roy A. Esnard in Opposition re: 4 Declaration in Opposition. Document filed by Robert Doar, The New York City Human Rights Resources Administration. (Attachments: # 1 Exhibit Exhibit B, # 2 Exhibit Exhibit C, # 3 Exhibit Exhibit D − part 1, # 4 Exhibit Exhibit D − part 2)(Sweet, Emily) (Entered: 12/20/2012)
CASE ACCEPTED AS RELATED. Create association to 1:05−cv−06920−KBF. Notice of Assignment to follow. (pgu) (Entered: 12/21/2012)
6 NOTICE OF CASE ASSIGNMENT to Judge Katherine B. Forrest. Judge Unassigned is no longer assigned to the case. (pgu) (Entered: 12/21/2012)
Magistrate Judge Andrew J. Peck is so designated. (pgu) (Entered: 12/21/2012)
7 ORDER: It is hereby ORDERED that no later than January 7, 2013, plaintiffs should file their legal and evidentiary submissions addressing the above issues in connection with the standard for injunctive relief. Defendants shall file any response thereto no later than seven (7) calendar days after plaintiffs make their submission. All filings should be made on ECF per the Federal Rules of Civil Procedure and the Local Rules of Civil Procedure for the Southern District of New York. IT IS FURTHER ORDERED that this action shall be removed from Pilot Project Regarding Case Management Techniques for Complex Civil Cases in the Southern District of New York. The Clerk of the Court is ordered to remove this action from the Pilot Project Regarding Case Management Techniques for Complex Civil Cases in the Southern District of New York. (Signed by Judge Katherine B. Forrest on 12/21/2012) (ago) (Entered: 12/21/2012)
8 ORDER PERMITTING PLAINTIFF TO PROCEED ANONYMOUSLY: Upon the Amended Complaint, the Attorney's Declaration of Kathleen Kelleher, dated December 20,2012, indicating that the name of the plaintiff whose fictitious name appears in the caption of the First Amended Complaint will be provided to the defendant along with identifying information. IT IS HEREBY ORDERED that the plaintiff X.T. be permitted to proceed anonymously in this action. (Signed by Judge Katherine B. Forrest on 12/21/2012) (ago) (Entered: 12/21/2012)
9 NOTICE OF APPEARANCE by Emily Sweet on behalf of Robert Doar, The New York City Human Rights Resources Administration (Sweet, Emily) (Entered: 12/21/2012)
10 FIRST AMENDED COMPLAINT amending 1 Complaint against Robert Doar, The New York City Human Rights Resources Administration.Document filed by X.T., Sherry Hanan, Renee Moore. Related document: 1 Complaint filed by Alechea Toney−Dick.(cd) (Entered: 12/27/2012)
11 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Kenneth Stephens dated 1/7/2013 re: Plaintiffs respectfully request permission, with consent of the defendants, to file a memorandum of law of approximately 30 pages, in support of our combined motion(s) for a preliminary injunction and class certification. The alternative of filing two separate memoranda would, in our estimation, be more cumbersome and less efficient for the parties and the Court. The motion papers will be filed today via ECF as set forth in the Court's Order of December 21, 2012. ENDORSEMENT: Application granted. (Signed by Judge Katherine B. Forrest on 1/7/2013) (rjm) (Entered: 01/07/2013)
Set/Reset Deadlines: Motions due by 1/7/2013. (rjm) (Entered: 01/07/2013)
12 NOTICE OF APPEARANCE by Randy M. Mastro on behalf of Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T. (Mastro, Randy) (Entered: 01/08/2013)
13 NOTICE OF APPEARANCE by Justin Solomon Nematzadeh on behalf of Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T. (Nematzadeh, Justin) (Entered:

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 7 of 30

01/08/2013 01/08/2013 01/08/2013
01/08/2013 01/08/2013 01/08/2013 01/08/2013 01/08/2013 01/08/2013 01/08/2013 01/08/2013 01/09/2013
01/11/2013

01/08/2013)
14 MOTION for Preliminary Injunction., MOTION to Certify Class. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Attachments: # 1 Text of Proposed Order)(Mastro, Randy) (Entered: 01/08/2013)
15 MEMORANDUM OF LAW in Support re: 14 MOTION for Preliminary Injunction. MOTION to Certify Class.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Mastro, Randy) (Entered: 01/08/2013)
16 DECLARATION of Kenneth Stephens in Support re: 14 MOTION for Preliminary Injunction. MOTION to Certify Class.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Mastro, Randy) (Entered: 01/08/2013)
17 DECLARATION of Renee Moore in Support re: 14 MOTION for Preliminary Injunction. MOTION to Certify Class.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Mastro, Randy) (Entered: 01/08/2013)
18 DECLARATION of Sherry Hanan in Support re: 14 MOTION for Preliminary Injunction. MOTION to Certify Class.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Mastro, Randy) (Entered: 01/08/2013)
19 DECLARATION of Susan Dooha in Support re: 14 MOTION for Preliminary Injunction. MOTION to Certify Class.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Mastro, Randy) (Entered: 01/08/2013)
20 DECLARATION of Ryan P. Gelman in Support re: 14 MOTION for Preliminary Injunction. MOTION to Certify Class.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Attachments: # 1 Exhibit A)(Mastro, Randy) (Entered: 01/08/2013)
21 DECLARATION of XT in Support re: 14 MOTION for Preliminary Injunction. MOTION to Certify Class.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Mastro, Randy) (Entered: 01/08/2013)
22 DECLARATION of Catherine F. Bowman in Support re: 14 MOTION for Preliminary Injunction. MOTION to Certify Class.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Mastro, Randy) (Entered: 01/08/2013)
23 DECLARATION of Joel S. Berg in Support re: 14 MOTION for Preliminary Injunction. MOTION to Certify Class.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Mastro, Randy) (Entered: 01/08/2013)
24 NOTICE OF APPEARANCE by Susan R. Sternberg on behalf of Alechea Toney−Dick (Sternberg, Susan) (Entered: 01/08/2013)
25 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Emily Sweet dated 1/8/2013 re: The parties jointly request the following briefing schedule for Plaintiffs' motions for a preliminary injunction and class certification, and Defendants' motion to dismiss: January 8, 2013: Plaintiffs' motion for a preliminary injunction. January 16, 2013: Defendants' opposition to Plaintiffs' motions for a preliminary injunction and class certification, Defendants' motion to dismiss. January 30, 2013: Plaintiffs' opposition to Defendants' motion to dismiss, Plaintiffs' reply in further support of their motions for a preliminary injunction and class certification. February 6, 2013 Defendants' reply in further support of their motion for a preliminary injunction. ENDORSEMENT: Time frames as set forth herein accepted. ( Motions due by 1/16/2013. Responses due by 1/30/2013, Replies due by 2/6/2013.)(Signed by Judge Katherine B. Forrest on 1/9/2013) (djc) (Entered: 01/09/2013)
26 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Kenneth Stephens dated 1/9/2013 re: Plaintiffs are submitting this letter just to alert the Court of a filing of a state court case, Matter of Fiddler v. Doar (Sup. Ct. Kings County, Index No. 450/2013), brought under a special state court procedure, Article 78 of the Civil Practice Law and Rules. ENDORSEMENT: Ordered. The Clerk shall post this letter on the docket. (Signed by Judge Katherine B. Forrest on 1/10/2013) (rjm) (Entered:

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 8 of 30

01/16/2013
01/17/2013 01/17/2013 01/17/2013 01/30/2013 01/31/2013 01/31/2013 02/07/2013 02/07/2013

01/11/2013)
27 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Emily Sweet dated 1/15/2013 re: Counsel requests: (1) a modification of the briefing schedule jointly requested by the parties and approved by the Court last week in order to provide Defendant an extra day to complete motion and opposition papers presently due tomorrow; and (2) that Defendants be granted leave to submit a 35−page brief. Plaintiffs' counsel has kindly consented to these requests. Defendants respectfully request that all remaining deadlines be moved by one day, resulting in the following modified schedule: January 17, 2013: Defendants' opposition to Plaintiffs' motions for a preliminary injunction and class certification. Defendants' motion to dismiss. January 31, 2013: Plaintiffs' opposition to Defendants' motion to dismiss. Plaintiffs' reply in further support of their motions for a preliminary injunction and class certification. February 7, 2013: Defendants' reply in further support of their motion to dismiss. Additionally, Defendants request that they be granted leave to submit a single 35 page brief in support of their motion to dismiss and in opposition to Plaintiffs' motions for a preliminary injunction and class certification. ENDORSEMENT: Ordered: Applications regarding schedule and page length granted. (Motions due by 1/17/2013, Responses due by 1/31/2013, Replies due by 2/7/2013.) (Signed by Judge Katherine B. Forrest on 1/16/2013) (ft) (Entered: 01/16/2013)
28 FIRST MOTION to Dismiss First Amended Complaint. Document filed by Robert Doar, The New York City Human Rights Resources Administration. Responses due by 1/31/2013 Return Date set for 2/7/2013 at 11:59 PM.(Sweet, Emily) (Entered: 01/17/2013)
29 DECLARATION of Roy A. Esnard in Opposition re: 14 MOTION for Preliminary Injunction. MOTION to Certify Class.. Document filed by Robert Doar, The New York City Human Rights Resources Administration. (Sweet, Emily) (Entered: 01/17/2013)
30 MEMORANDUM OF LAW in Opposition re: 14 MOTION for Preliminary Injunction. MOTION to Certify Class. and In Support of Defendants' Cross−Motion to Dismiss the First Amended Complaint. Document filed by Robert Doar, The New York City Human Rights Resources Administration. (Sweet, Emily) (Entered: 01/17/2013)
31 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Kenneth Stephens dated 1/30/2013 re: Plaintiffs are respectfully requesting, with consent of counsel for the defendants, permission to file a brief not to exceed 36 pages in opposition to defendants' cross−motion to dismiss plaintiffs' first amended class action complaint and in further support of plaintiffs' motions for a preliminary injunction and class certification. ENDORSEMENT: Ordered: Application granted. (Signed by Judge Katherine B. Forrest on 1/30/2013) (ft) (Entered: 01/30/2013)
32 MEMORANDUM OF LAW in Opposition re: 14 MOTION for Preliminary Injunction. MOTION to Certify Class., 28 FIRST MOTION to Dismiss First Amended Complaint. PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' CROSS−MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED CLASS ACTION COMPLAINT AND IN FURTHER SUPPORT OF PLAINTIFFS' MOTIONS FOR A PRELIMINARY INJUNCTION AND CLASS CERTIFICATION. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Mastro, Randy) (Entered: 01/31/2013)
33 DECLARATION of Kenneth Stephens in Opposition re: 14 MOTION for Preliminary Injunction. MOTION to Certify Class., 28 FIRST MOTION to Dismiss First Amended Complaint.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Attachments: # 1 Exhibit 1)(Mastro, Randy) (Entered: 01/31/2013)
34 DECLARATION of Daniel J. Krombach in Support re: 28 FIRST MOTION to Dismiss First Amended Complaint.. Document filed by Robert Doar, The New York City Human Rights Resources Administration. (Sweet, Emily) (Entered: 02/07/2013)
35 REPLY MEMORANDUM OF LAW in Support re: 28 FIRST MOTION to Dismiss First Amended Complaint.. Document filed by Robert Doar, The New York City Human Rights Resources Administration. (Sweet, Emily) (Entered: 02/07/2013)

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03/05/2013 03/05/2013
03/18/2013
03/29/2013 04/02/2013

36 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Sumani V. Lanka dated 3/1/2013 re: Plaintiff's counsel writes plaintiffs respectfully submit this letter seeking an order compelling defendants to produce documents in response to Plaintiffs' Document Request and designate a witness in response to Plaintiffs' Deposition Notice, and provide such other relief as the Court deems just and proper. ENDORSEMENT: Ordered. The court expects to issue a decision on the motion to dismiss in the relatively near future. That decision is expected to dismiss the case with leave to replead. If, once that decision issues and the parties have reviewed it, this discovery dispute remains live, the Court will resolve it. Note: The Court is not staying discovery at this time. (Signed by Judge Katherine B. Forrest on 3/4/2013) (ago) (Entered: 03/05/2013)
37 Letter addressed to Judge Katherine B. Forrest from Emily Sweet dated 3/1/2013 re: Defense counsel writes Defendants respectfully submit that their pending motion to dismiss has "substantial grounds," as it demonstrates, among other things that plaintiffs have failed to join necessary parties, that three of the four named plaintiffs' claims are moot, and the fourth plaintiff fails to state a claim. Moreover, defendants' motion, if granted, would entirely dispose of this action.Defendants are prepared to begin producing the documents described in their February 20 email next week and to continue to do so thereafter on a rolling basis pending resolution of the pending motion to dismiss. Additionally, defendants are prepared to move forward expeditiously with formal discovery in the event that their motion to dismiss is denied. Given this, there is no reason to believe that plaintiffs will be prejudiced by holding discovery in abeyance.We note that in order to satisfy the 30(b)(6) notice, HRA would most likely have to identify, prepare and produce multiple witnesses for deposition. It is respectfully submitted that it does not make sense to move forward at this time with formal discovery, including what could be multiple depositions, all in a case that might ultimately be dismissed, without the need for any discovery.Accordingly, for all the above reasons, defendants respectfully request that this Court stay discovery pending resolution of their motion to dismiss and deny plaintiffs' request for an order compelling discovery. Document filed by The New York City Human Rights Resources Administration.(ago) (Entered: 03/05/2013)
38 MEMORANDUM DECISION & ORDER: granting in part and denying in part 28 Motion to Dismiss; denying 14 Motion for Preliminary Injunction; denying 14 Motion to Certify Class. For the reasons stated above, defendants' motion to dismiss is GRANTED IN PART, and plaintiffs' Complaint is dismissed without prejudice to the filing of a second amended complaint. Without an operative complaint, plaintiffs' motion for preliminary injunctive relief and class certification is DENIED, without prejudice, as moot. Plaintiffs are hereby ORDERED to file their second amended complaint, with−−or without−−any application for preliminary injunctive relief, on ECF not later than Friday, March 29, 2013. The Court emphasizes that although plaintiffs' motion for preliminary injunctive relief is denied and their Complaint dismissed, plaintiffs have not lost this case. Indeed−−and putting aside the technical litigation aspects of this case−−it is clear that the D−SNAP applied for by the State, authorized by USDA, and administered by the City did not reach as many ofits intended beneficiaries as it could have. Whether as a matter of law the program was unlawfully discriminatory and/or whether alternative reasonable accommodations existed−−taking into account the various and extreme exigencies facing the City authorities in the wake of Hurricane Sandy−−is a question left for another day. The Clerk of the Court is directed to terminate the motions at ECF Nos. 14 and 28. SO ORDERED.(Signed by Judge Katherine B. Forrest on 3/18/2013) (ama) (Entered: 03/18/2013)
41 SECOND AMENDED CLASS ACTION COMPLAINT amending 10 Amended Complaint against Robert Doar, The New York City Human Rights Resources Administration, Kristin Proud, The New York State Office of Temporary and Disability Assistance, Tom Vilsack, United States Department of Agriculture.Document filed by Alechea Toney−Dick, Renee Moore, X.T., Sherry Hanan. Related document: 10 Amended Complaint filed by Sherry Hanan, Renee Moore, X.T. (js) (Entered: 04/03/2013)
39 ORDER: On March 18, 2013, the Court denied plaintiffs' request for preliminary injunctive relief in this matter, dismissed plaintiffs' First Amended Complaint, and ordered plaintiffs to file their Second Amended Complaint not later than March 29, 2013 (ECF No. 38). That date has come and gone, and plaintiffs have made no filing.

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 10 of 30

04/03/2013 04/11/2013 04/17/2013 04/17/2013
04/17/2013 04/17/2013
05/09/2013 05/13/2013 05/13/2013 05/13/2013 05/13/2013 05/13/2013 05/13/2013

Plaintiffs are thus hereby directed to inform the Court not later than Wednesday, April 3, 2013, at 5:00 p.m. whether they intend to continue to prosecute this action. Otherwise it will be terminated. (Signed by Judge Katherine B. Forrest on 4/2/2013) (mt) (Entered: 04/02/2013)
40 ORDER: The Court shall hold a status conference on Wednesday, April 17, 2013, at 11:00 a.m. All parties shall attend. ( Status Conference set for 4/17/2013 at 11:00 AM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 4/3/2013) (ago) (Entered: 04/03/2013)
42 NOTICE OF APPEARANCE by John Peter Gasior on behalf of Kristin Proud, The New York State Office of Temporary and Disability Assistance (Gasior, John) (Entered: 04/11/2013)
Minute Entry for proceedings held before Judge Katherine B. Forrest: Status Conference held on 4/17/2013. (jp) (Entered: 04/17/2013)
43 CERTIFICATE OF SERVICE of Summons and Amended Complaint,. Robert Doar served on 4/5/2013, answer due 4/26/2013; Kristin Proud served on 4/5/2013, answer due 4/26/2013; The New York City Human Rights Resources Administration served on 4/5/2013, answer due 4/26/2013; The New York State Office of Temporary and Disability Assistance served on 4/5/2013, answer due 4/26/2013; United States Department of Agriculture served on 4/5/2013, answer due 4/26/2013; Tom Vilsack served on 4/5/2013, answer due 4/26/2013. Service was accepted by by hand, various. Service was made by Mail. Document filed by Sherry Hanan; Alechea Toney−Dick; Renee Moore; X.T.. (Attachments: # 1 Certificate of Service, # 2 Certificate of Service, # 3 Certificate of Service, # 4 Certificate of Service, # 5 Certificate of Service, # 6 Affidavit of Service, # 7 Affidavit of Service)(Mastro, Randy) (Entered: 04/17/2013)
44 NOTICE OF APPEARANCE by Tara Marie La Morte on behalf of United States Department of Agriculture, Tom Vilsack (La Morte, Tara) (Entered: 04/17/2013)
45 SCHEDULING ORDER: The following schedule shall govern the remaining proceedings in this case: Motions due by 5/13/2013. Responses due by 6/12/2013 Replies due by 8/1/2013. Fact Discovery due by 11/14/2013. Expert Discovery due by 12/12/2013. Status Conference set for 8/6/2013 at 01:00 PM before Judge Katherine B. Forrest. Ready for Trial by 1/21/2014. SO ORDERED. (Signed by Judge Katherine B. Forrest on 4/17/2013) (ama) (Entered: 04/17/2013)
46 NOTICE OF APPEARANCE by Goutam Umesh Jois on behalf of Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T. (Jois, Goutam) (Entered: 05/09/2013)
47 MOTION to Certify Class. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Attachments: # 1 Text of Proposed Order)(Lanka, Sumani) (Entered: 05/13/2013)
48 MEMORANDUM OF LAW in Support re: 47 MOTION to Certify Class.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Lanka, Sumani) (Entered: 05/13/2013)
49 DECLARATION of Joel S. Berg in Support re: 47 MOTION to Certify Class.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Lanka, Sumani) (Entered: 05/13/2013)
50 DECLARATION of Catherine F. Bowman in Support re: 47 MOTION to Certify Class.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Lanka, Sumani) (Entered: 05/13/2013)
51 DECLARATION of Susan Dooha in Support re: 47 MOTION to Certify Class.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Lanka, Sumani) (Entered: 05/13/2013)
52 DECLARATION of Ryan P. Gelman in Support re: 47 MOTION to Certify Class.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Attachments: # 1 Exhibit A)(Lanka, Sumani) (Entered: 05/13/2013)

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 11 of 30

05/13/2013 05/13/2013 05/13/2013 05/13/2013 05/13/2013 05/16/2013
05/16/2013
05/22/2013
05/22/2013
06/12/2013 06/12/2013 06/12/2013

53 DECLARATION of Sherry Hanan in Support re: 47 MOTION to Certify Class.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Lanka, Sumani) (Entered: 05/13/2013)
54 DECLARATION of Renee Moore in Support re: 47 MOTION to Certify Class.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Lanka, Sumani) (Entered: 05/13/2013)
55 DECLARATION of Kenneth Stephens in Support re: 47 MOTION to Certify Class.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Lanka, Sumani) (Entered: 05/13/2013)
56 DECLARATION of Alechea Toney−Dick in Support re: 47 MOTION to Certify Class.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Lanka, Sumani) (Entered: 05/13/2013)
57 DECLARATION of X.T. in Support re: 47 MOTION to Certify Class.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Lanka, Sumani) (Entered: 05/13/2013)
58 TRANSCRIPT of Proceedings re: CONFERENCE held on 4/17/2013 before Judge Katherine B. Forrest. Court Reporter/Transcriber: Linda Fisher, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/10/2013. Redacted Transcript Deadline set for 6/20/2013. Release of Transcript Restriction set for 8/19/2013.(Rodriguez, Somari) (Entered: 05/16/2013)
59 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 4/17/13 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 05/16/2013)
60 TRANSCRIPT of Proceedings re: CONFERENCE held on 4/17/2013 before Judge Katherine B. Forrest. Court Reporter/Transcriber: Linda Fisher, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/17/2013. Redacted Transcript Deadline set for 6/27/2013. Release of Transcript Restriction set for 8/23/2013.(McGuirk, Kelly) (Entered: 05/22/2013)
61 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 4/17/13 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/22/2013)
62 MEMORANDUM OF LAW in Opposition re: 47 MOTION to Certify Class.. Document filed by Kristin Proud, The New York State Office of Temporary and Disability Assistance. (Attachments: # 1 Affidavit Declaration of John Gasior, # 2 Affidavit Declaration of Thomas Hedderman)(Gasior, John) (Entered: 06/12/2013)
63 MEMORANDUM OF LAW in Opposition re: 47 MOTION to Certify Class.. Document filed by Robert Doar, The New York City Human Rights Resources Administration. (Longley, Serena) (Entered: 06/12/2013)
64 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION to Dismiss for Lack of Jurisdiction. Document filed by Kristin Proud, The New York State Office of Temporary and Disability Assistance. Responses due by 7/9/2013 (Attachments: # 1 Memorandum of Law to Dismiss, # 2 Declaration of John Gasior, # 3 Declaration of Thomas Hedderman)(Gasior, John) Modified on 6/13/2013 (db). (Entered:

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 12 of 30

06/12/2013 06/12/2013 06/12/2013 06/12/2013 06/12/2013 06/13/2013
06/13/2013 06/13/2013 06/13/2013 06/13/2013 07/11/2013
07/12/2013 07/12/2013 07/12/2013 07/19/2013

06/12/2013)
65 ANSWER to 41 Amended Complaint,. Document filed by Robert Doar, The New York City Human Rights Resources Administration.(Sweet, Emily) (Entered: 06/12/2013)
66 NOTICE OF APPEARANCE by Serena Mabel Longley on behalf of Robert Doar, The New York City Human Rights Resources Administration (Longley, Serena) (Entered: 06/12/2013)
67 MOTION to Dismiss Second Amended Complaint. Document filed by United States Department of Agriculture, Tom Vilsack. Responses due by 7/19/2013(La Morte, Tara) (Entered: 06/12/2013)
68 MEMORANDUM OF LAW in Support re: 67 MOTION to Dismiss Second Amended Complaint.. Document filed by United States Department of Agriculture, Tom Vilsack. (La Morte, Tara) (Entered: 06/12/2013)
69 DECLARATION of Jessica Shahin in Support re: 67 MOTION to Dismiss Second Amended Complaint.. Document filed by United States Department of Agriculture, Tom Vilsack. (Attachments: # 1 Exhibit A)(La Morte, Tara) (Entered: 06/12/2013)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney John Peter Gasior to RE−FILE Document 64 MOTION to Dismiss for Lack of Jurisdiction. ERROR(S): Supporting Documents are filed separately, each receiving their own document #. (db) (Entered: 06/13/2013)
70 MOTION to Dismiss for Lack of Jurisdiction. Document filed by Kristin Proud, The New York State Office of Temporary and Disability Assistance. Responses due by 7/9/2013(Gasior, John) (Entered: 06/13/2013)
71 MEMORANDUM OF LAW in Support re: 70 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Kristin Proud, The New York State Office of Temporary and Disability Assistance. (Gasior, John) (Entered: 06/13/2013)
72 DECLARATION of John Gasior in Support re: 70 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Kristin Proud, The New York State Office of Temporary and Disability Assistance. (Gasior, John) (Entered: 06/13/2013)
73 DECLARATION of Thomas Hedderman in Support re: 70 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Kristin Proud, The New York State Office of Temporary and Disability Assistance. (Gasior, John) (Entered: 06/13/2013)
74 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Justin Solomon Nematzadeh dated 7/10/13 re: Counsel for the plaintiffs respectfully requests permission, with Defendants' consent already given, to file two separate memoranda of law in opposition to the State and Federal Defendants' motions to dismiss Plaintiffs' Second Amended Complaint and a separate combined reply brief in further support of Plaintiffs' motion for class certification (three memoranda of law in total). ENDORSEMENT: Ordered: Application granted. (Signed by Judge Katherine B. Forrest on 7/11/2013) (mro) (Entered: 07/11/2013)
75 MOTION for Judgment on the Pleadings. Document filed by Robert Doar, The New York City Human Rights Resources Administration. Responses due by 7/26/2013(Sweet, Emily) (Entered: 07/12/2013)
76 MEMORANDUM OF LAW in Support re: 75 MOTION for Judgment on the Pleadings.. Document filed by Robert Doar, The New York City Human Rights Resources Administration. (Sweet, Emily) (Entered: 07/12/2013)
77 DECLARATION of Emily Sweet in Support re: 75 MOTION for Judgment on the Pleadings.. Document filed by Robert Doar, The New York City Human Rights Resources Administration. (Sweet, Emily) (Entered: 07/12/2013)
78 MEMORANDUM OF LAW in Opposition re: 67 MOTION to Dismiss Second Amended Complaint. PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO THE FEDERAL DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' SECOND AMENDED COMPLAINT. Document filed by Sherry Hanan, Renee Moore, Alechea

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 13 of 30

07/19/2013 07/19/2013 07/19/2013
07/25/2013
07/30/2013 07/30/2013 07/31/2013
07/31/2013 08/01/2013 08/01/2013

Toney−Dick, X.T.. (Mastro, Randy) (Entered: 07/19/2013)
79 MEMORANDUM OF LAW in Opposition re: 70 MOTION to Dismiss for Lack of Jurisdiction. PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO THE STATE DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' SECOND AMENDED COMPLAINT. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Mastro, Randy) (Entered: 07/19/2013)
80 REPLY MEMORANDUM OF LAW in Support re: 47 MOTION to Certify Class. PLAINTIFFS' REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CLASS CERTIFICATION. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Attachments: # 1 Appendix A)(Lanka, Sumani) (Entered: 07/19/2013)
81 DECLARATION of Sumani Lanka re: 80 Reply Memorandum of Law in Support of Motion, 79 Memorandum of Law in Opposition to Motion, 78 Memorandum of Law in Opposition to Motion,. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17)(Lanka, Sumani) (Entered: 07/19/2013)
82 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Justin Solomon Nematzadeh dated 7/23/13 re: Plaintiffs respectfully request that the deadline for their opposition papers be extended from July 26, 2013, to thirty (30) days after your Honor enters orders in connection with (i) Plaintiffs' Motion for Class Certification, (ii) Federal Defendants' Motion to Dismiss, and (iii) State Defendants' Motion to Dismiss. City Defendants consent to this timeline. Correspondingly and with Plaintiffs' consent, City Defendants respectfully request that the deadline for their reply papers be set for fourteen (14) days after Plaintiffs' opposition is filed. ENDORSEMENT: Ordered: Application granted. (Signed by Judge Katherine B. Forrest on 7/24/2013) (mro) (Entered: 07/25/2013)
83 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Tara M. La Morte dated 7/29/13 re: Counsel writes to request an extension of the ten page limit for the Federal Defendants' reply brief. ENDORSEMENT: Ordered: Application granted. (Signed by Judge Katherine B. Forrest on 7/29/2013) (mro) (Entered: 07/30/2013)
Set/Reset Deadlines: Replies due by 8/1/2013. (mro) (Entered: 07/30/2013)
84 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Tara M. La Morte dated 7/30/13 re: Counsel requests that if the Court wishes to hold an oral argument on the Federal Defendants' motion to dismiss, that it schedule argument on one of the dates listed herein. ENDORSEMENT: Ordered: Conference set for Aug. 6 adjourned to Sept. 5 at 9 am. ( Oral Argument set for 9/5/2013 at 09:00 AM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 7/31/2013) (mro) (Entered: 07/31/2013)
85 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Justin Solomon Nematzadeh dated 7/30/13 re: Counsel writes in response to Ms. LaMorte's letter of earlier today, July 30, 2013. Counsel writes simply to clarify that Plaintiffs take no position on the Federal Defendants' request and are available to proceed on August 6, 2013, as scheduled. ENDORSEMENT: Ordered: Post to docket. (Signed by Judge Katherine B. Forrest on 7/31/2013) (mro) (Entered: 07/31/2013)
86 FILING ERROR − ELECTRONIC FILING OF NON−ECF DOCUMENT − MOTION for Leave to File Excess Pages to State Defendants' Reply Memorandum of Law. Document filed by Kristin Proud, The New York State Office of Temporary and Disability Assistance. Return Date set for 9/5/2013 at 09:00 AM.(Gasior, John) Modified on 8/1/2013 (db). (Entered: 08/01/2013)
87 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Josh Gasior dated 8/1/13 re: Counsel writes to request that the Court allow State Defendants to file an 11 page memoranda. Counsel for all other parties consent to this request. ENDORSEMENT: Ordered: Application granted. (Signed by Judge Katherine B. Forrest on 8/1/2013) (mro) (Entered: 08/01/2013)

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 14 of 30

08/01/2013
08/01/2013 08/01/2013 08/01/2013 08/01/2013 08/01/2013 08/01/2013 08/28/2013
08/28/2013
08/28/2013
08/29/2013
08/30/2013

***NOTE TO ATTORNEY THAT THE ATTEMPTED FILING OF Document No. 86 HAS BEEN REJECTED. Note to Attorney John Peter Gasior : THE CLERK'S OFFICE DOES NOT ACCEPT LETTERS FOR FILING, either through ECF or otherwise, except where the judge has ordered that a particular letter be docketed. Letters may be sent directly to a judge. (db) (Entered: 08/01/2013)
88 REPLY MEMORANDUM OF LAW in Support re: 67 MOTION to Dismiss Second Amended Complaint.. Document filed by United States Department of Agriculture, Tom Vilsack. (La Morte, Tara) (Entered: 08/01/2013)
89 REPLY AFFIDAVIT of Tara M. La Morte in Support re: 67 MOTION to Dismiss Second Amended Complaint.. Document filed by United States Department of Agriculture, Tom Vilsack. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(La Morte, Tara) (Entered: 08/01/2013)
90 REPLY AFFIDAVIT of James Arena DeRosa in Support re: 67 MOTION to Dismiss Second Amended Complaint.. Document filed by United States Department of Agriculture, Tom Vilsack. (La Morte, Tara) (Entered: 08/01/2013)
91 REPLY AFFIDAVIT of David Youngblood in Support re: 67 MOTION to Dismiss Second Amended Complaint.. Document filed by United States Department of Agriculture, Tom Vilsack. (La Morte, Tara) (Entered: 08/01/2013)
92 REPLY MEMORANDUM OF LAW in Support re: 70 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Kristin Proud, The New York State Office of Temporary and Disability Assistance. (Gasior, John) (Entered: 08/01/2013)
93 DECLARATION of Thomas J. Hedderman in Support re: 70 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Kristin Proud, The New York State Office of Temporary and Disability Assistance. (Gasior, John) (Entered: 08/01/2013)
94 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Justin Solomon Nematzadeh dated 8/26/13 re: The parties respectfully request clarification from the Court as to whether they should be prepared to present oral argument on any or all of these motions during our status conference scheduled for 9 A.M. on Thursday, September 5, 2013, and, if so, if there are specific issues that the parties should address. ENDORSEMENT: Ordered: Post to docket. (Signed by Judge Katherine B. Forrest on 8/28/2013) (mro) (Entered: 08/28/2013)
95 ORDER: On September 5, 2013, an oral argument on the pending motions in the above−captioned case is scheduled to occur. On August 27, 2013, Plaintiffs submitted a letter on behalf of all parties requesting information regarding which motions the Court intends on addressing at the upcoming oral argument. The parties need not be prepared to address the Motion for Class Certification or the Motion to Dismiss submitted by the State Defendants. However, the Court may request argument on the Motion to Dismiss submitted by the USDA. Specifically, the parties should be prepared to address the issue of whether the USDA is amenable to suit in this matter. (Signed by Judge Katherine B. Forrest on 8/28/2013) (mro) (Entered: 08/28/2013)
96 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Serena Longley dated 8/28/2013 re: Counsel write to request an extension of time, from 8/30/2013 at 8:30 p.m. until 9/4/2013 at 9:00 a.m., to respond to plaintiffs' letter to the Court submitted at 8:31 p.m. on 8/27/2013. ENDORSEMENT: Ordered. Application granted. (Signed by Judge Katherine B. Forrest on 8/28/2013) (tro) (Entered: 08/28/2013)
97 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Tara M. La Morte dated 8/29/13 re: Counsel writes respectfully, with consent from Plaintiffs, to request an extension of time, from August 30, 2013, at 8:30 p.m. until September 4, 2013, at 9:00 a.m., to respond to Plaintiffs' letter to the Court submitted at 8:31 p.m. on August 27, 2013. ENDORSEMENT: Ordered: Application granted. (Signed by Judge Katherine B. Forrest on 8/29/2013) (mro) (Entered: 08/29/2013)
98 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Justin Solomon Nematzadeh dated 8/27/2013 re: Counsel for Plaintiffs write to raise an important discovery issue in advance of the parties' 9/5/2013, status conference with the Court. ENDORSEMENT: Ordered. Post to docket. (Signed by Judge Katherine B. Forrest on

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 15 of 30

09/03/2013
09/04/2013 09/05/2013 09/05/2013 09/05/2013 09/09/2013 09/09/2013 09/11/2013
09/11/2013

8/30/2013) (tro) (Entered: 08/30/2013)
99 ORDER: Accordingly, it is to these issues that the Court wishes to direct the parties' attention. FIRST, the parties are directed to be prepared to discuss the tenability of an implied cause of action against a federal funding agency when the agency itself is accused of engaging in discriminatory conduct. SECOND, the parties are directed to be prepared to discuss the following: The precise role of the USDA, in relation to the City and State Defendants, in designing and approving the annual D−SNAP Plan. The precise role of the USDA, in relation to the City and State Defendants, in designing, approving, and implementing the D−SNAP Program effectuated in the wake of Hurricane Sandy. The extent to which the USDA was aware of the allegedly discriminatory components of the Hurricane Sandy D−SNAP Program, and what action, if any, the USDA took in response. The relationship between the annual D−SNAP Plan and a D−SNAP program that is implemented following a natural or manmade disaster, both generally and with respect to the Hurricane Sandy D−SNAP Program. THIRD, as a separate but related issue, the parties are directed to be prepared to address whether − notwithstanding the Court's prior Order − the Court could afford complete relief to the Plaintiffs without the USDA as a named defendant in this action. SO ORDERED. (Signed by Judge Katherine B. Forrest on 9/03/2013) (ama) (Entered: 09/03/2013)
100 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Tara M. La Morte dated 8/30/2013 re: Counsel requests that the status conference scheduled for 9/5/2013, be rescheduled for 9/4/2013, or anytime the week of 9/9/2013. ENDORSEMENT: Ordered. Post to docket. (Signed by Judge Katherine B. Forrest on 9/4/2013) (tro) (Entered: 09/04/2013)
101 ORDER: The Oral Argument previously scheduled for September 5, 2013 is hereby adjourned to September 20, 2013 at 10:00 A.M. ( Oral Argument set for 9/20/2013 at 10:00 AM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 9/4/2013) (mro) (Entered: 09/05/2013)
102 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Goutam Jois dated 9/4/13 re: Plaintiffs respectfully request a telephonic status conference about discovery next week, and oral argument on the Federal Defendants' motion at some future mutually convenient date. ENDORSEMENT: Ordered: Telephonic status conference on 9/11/13 at 8:30 am to discuss discovery issues. ( Telephone Conference set for 9/11/2013 at 08:30 AM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 9/4/2013) (mro) (Entered: 09/05/2013)
103 ENDORSED LETTER addressed to Judge Katherine B. Forrest from John Gasior dated 9/4/13 re: This letter is written jointly on behalf of the City, State and Federal defendants (collectively "Defendants," unless otherwise noted) in opposition to Plaintiffs' August 27, 2013, letter motion which asks the Court to issue a blanket−order order holding that the deliberative process privilege may not be asserted by Defendants in this matter. ENDORSEMENT: Ordered: Post to docket. (Signed by Judge Katherine B. Forrest on 9/5/2013) (mro) (Entered: 09/05/2013)
104 ORDER: The phone conference previously scheduled for September 11, 2013 at 8:30 A.M. is hereby adjourned to 9:00 A.M. that day. (Signed by Judge Katherine B. Forrest on 9/9/2013) (mro) (Entered: 09/09/2013)
Set/Reset Hearings: Telephone Conference set for 9/11/2013 at 09:00 AM before Judge Katherine B. Forrest. (mro) (Entered: 09/09/2013)
105 ORDER: On September 11, 2013, a telephonic conference was held in the above−referenced case. On or before 5:00 P.M. on September 13, 2013, the parties are ORDERED to jointly submit the names and titles of the three (3) document custodians that have been selected to produce all documents in their possession for which deliberative process is being asserted. No more than two (2) document custodians may come from the same Defendant. On or before October 4, 2013, Defendants shall produce, electronically if possible, all of the documents belonging to the selected document custodians for which deliberative process is being asserted. (Signed by Judge Katherine B. Forrest on 9/11/2013) (mro) (Entered: 09/11/2013)
106 LETTER addressed to Judge Katherine B. Forrest from Justin Nematzadeh dated 09/11/2013 re: Document Production Status. Document filed by Sherry Hanan, Renee

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 16 of 30

09/12/2013 09/16/2013
09/16/2013 09/17/2013 09/20/2013 09/23/2013
09/23/2013 09/26/2013 09/27/2013

Moore, Alechea Toney−Dick, X.T..(Mastro, Randy) (Entered: 09/11/2013)
107 LETTER addressed to Judge Katherine B. Forrest from Justin Nematzadeh dated 09/12/2013 re: Privilege Review. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T..(Mastro, Randy) (Entered: 09/12/2013)
108 MEMORANDUM DECISION & ORDER granting 47 Motion to Certify Class. The Court hereby GRANTS Plaintiffs' request for class certification, except that it divides the proposed class into two subclasses and strikes subsection (d) from the proposed class definition. One subclass shall consist of disabled individuals who were eligible to apply for benefits from the Sandy D−SNAP Program. The other subclass shall consist of individuals who may be eligible to apply for benefits from a future D−SNAP program and who will need reasonable accommodations because of a disability (or disabilities). The Clerk of Court is hereby directed to terminate Docket No. 47. (Signed by Judge Katherine B. Forrest on 9/13/2013) (mro) (Entered: 09/16/2013)
109 LETTER addressed to Judge Katherine B. Forrest from Tara M. La Morte dated September 16, 2013 re: Joint Response to Plaintiffs' Discovery Letter dated September 11, 2013. Document filed by United States Department of Agriculture, Tom Vilsack.(La Morte, Tara) (Entered: 09/16/2013)
110 MEMO ENDORSEMENT on re: 109 Letter, filed by Tom Vilsack, United States Department of Agriculture. ENDORSEMENT: Ordered: 1. The parties shall confer and submit a proposed "quick peek" and "clawback" order for the Court's review. 2. The scheduling issue raised herein shall be discussed at the conference on 9/20/13. (Signed by Judge Katherine B. Forrest on 9/17/2013) (mro) (Entered: 09/17/2013)
Minute Entry for proceedings held before Judge Katherine B. Forrest: Oral Argument held on 9/20/2013. (jp) (Entered: 09/20/2013)
111 ORDER denying 70 Motion to Dismiss for Lack of Jurisdiction; denying 75 Motion for Judgment on the Pleadings. On September 20, 2013, an Oral Argument in the above−referenced matter was held. As set forth on the record during that Argument, the Court hereby DENIES the State Defendants' Motion to Dismiss (ECF No. 70) and DENIES the City Defendants' Motion for Judgment on the Pleadings (ECF No. 75). Accordingly, the Clerk of Court is directed to terminate both motions. Additionally, the Court hereby sets forth the following Amended Schedule: 1. Document discovery shall close on November 29, 2013 (with good cause, a party may produce truly late−discovery documents up to January 1, 2014); 2. All fact depositions shall be completed by January 27, 2014; 3. Expert discovery shall close on February 24, 2014; 4. All pretrial materials are due March 3, 2014; 5. A final pretrial conference shall occur on March 6, 2014 at 1:00 P.M.; 6. Trial shall commence on March 10, 2014. The parties are hereby ORDERED to notify the Court within three days of the date of this Order should they have any proposed changes to this schedule. A status conference will be held on November 20, 2013 at 1:30 P.M. The Clerk of Court is directed to close the motions at ECF Nos. 70 and 75. (Signed by Judge Katherine B. Forrest on 9/23/2013) (lmb) (Entered: 09/23/2013)
Set/Reset Deadlines: ( Deposition due by 1/27/2014., Discovery due by 1/1/2014., Expert Discovery due by 2/24/2014.), Set/Reset Hearings:( Final Pretrial Conference set for 3/6/2014 at 01:00 PM before Judge Katherine B. Forrest., Status Conference set for 11/20/2013 at 01:30 PM before Judge Katherine B. Forrest.) (lmb) (Entered: 09/23/2013)
112 LETTER addressed to Judge Katherine B. Forrest from AAG John Gasior dated September 26, 2013 re: Instruction to notify Court of proposed changes to discovery schedule. Document filed by Robert Doar, Kristin Proud, The New York City Human Rights Resources Administration, The New York State Office of Temporary and Disability Assistance, United States Department of Agriculture, Tom Vilsack.(Gasior, John) (Entered: 09/26/2013)
113 LETTER addressed to Judge Katherine B. Forrest from Justin Nematzadeh dated September 27, 2013 re: Letter for Leave to Seek Permission to Supplement Record. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Attachments: # 1 Letter Seeking Permission to Supplement Record, # 2 Exhibit A through J)(Nematzadeh, Justin) (Entered: 09/27/2013)

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 17 of 30

09/29/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013
10/01/2013 10/01/2013 10/03/2013

114 LETTER addressed to Judge Katherine B. Forrest from Tara M. La Morte dated September 29, 2013 re: Federal Defendants' Response to Plaintiffs' Request to Supplement the Record Concerning the Federal Defendants' Motion to Dismiss. Document filed by United States Department of Agriculture, Tom Vilsack.(La Morte, Tara) (Entered: 09/29/2013)
115 MEMO ENDORSEMENT on re: 114 Letter, filed by Tom Vilsack, United States Department of Agriculture. ENDORSEMENT: Ordered: The Federal Government defendant may respond to the additional documents by 10/7/13 (assuming no Gov'tl shutdown. If there is a shutdown, provide a letter as soon as reasonably practicable). (Signed by Judge Katherine B. Forrest on 9/30/2013) (mro) (Entered: 09/30/2013)
116 MEMO ENDORSEMENT on re: 113 Letter, filed by Sherry Hanan, Renee Moore, X.T., Alechea Toney−Dick. ENDORSEMENT: Ordered: Application granted. (Signed by Judge Katherine B. Forrest on 9/30/2013) (mro) (Entered: 09/30/2013)
117 LETTER addressed to Judge Katherine B. Forrest from Tara M. La Morte dated September 30, 2013 re: Proposed Clawback Order. Document filed by United States Department of Agriculture, Tom Vilsack. (Attachments: # 1 Text of Proposed Order Proposed Clawback Order, # 2 Exhibit A, # 3 Exhibit B)(La Morte, Tara) (Entered: 09/30/2013)
118 LETTER addressed to Judge Katherine B. Forrest from Justin Nematzadeh dated September 30, 2013 re: Proposed Clawback Order. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Attachments: # 1 Exhibit A)(Nematzadeh, Justin) (Entered: 09/30/2013)
119 ORDER PURSUANT TO FED. R. EVID. 502(D) & INHERENT AUTHORITY: IT IS HEREBY ORDERED that pursuant to Fed. R. Evid. 502(d) and the Court's inherent authority: Any party's production in this proceeding of any documents or other information protected by the attorney−client privilege, attorney work product protection or any other privilege or protection recognized by law as well as any non−party personally identifying information (collectively, "Protected Material") shall not constitute a waiver of any privilege or protection applicable to that information in this or any other federal or state proceeding. A party that produces Protected Material (the "Producing Party") may demand that any party receiving Protected Material (the "Receiving Party") return or destroy the Protected Material (the "Clawback Demand"). Such demand shall be made promptly after the Producing Party discovers that the Protected Material was produced and shall state with particularity, in a privilege log that complies with Federal Rule of Civil Procedure 26(b )(5) and Local Civil Rule 26.2, the Protected Material to be returned or destroyed. If the documents subject to the Clawback Demand contain Protected Material only in part, the Producing Party shall,as soon as is practicable and no later than five (5) business days of the Clawback Demand, produce redacted versions of the documents subject to the Clawback Demand. Upon receiving a Clawback Demand, the Receiving Party shall return the information or documents to the Producing Party within five (5) business days,regardless of whether the Receiving Party agrees with the assertion of privilege and/or work product protection; as further set forth herein. (Signed by Judge Katherine B. Forrest on 9/30/2013) (mro) (Entered: 10/01/2013)
120 MEMO ENDORSEMENT on re: 118 Letter filed by Sherry Hanan, Renee Moore, X.T., Alechea Toney−Dick. ENDORSEMENT: The Court entered the defendants' proposed order as appropriate at this time. If you run into issues with that order, we can revisit the topic. (Signed by Judge Katherine B. Forrest on 10/1/2013) (lmb) (Entered: 10/01/2013)
128 STANDING ORDER M10−468: Stay of Certain Civil Cases Pending the Restoration of Department of Justice Funding. (Signed by Judge Loretta A. Preska on 10/1/2013) ***Original Standing Order docketed in case no. 1:13−mc−00334−LAP, document no. 2 on 10/1/2013.*** (mro) (Entered: 10/08/2013)
121 TRANSCRIPT of Proceedings re: CONFERENCE held on 9/20/2013 before Judge Katherine B. Forrest. Court Reporter/Transcriber: Carol Ganley, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/28/2013. Redacted Transcript Deadline set for 11/7/2013. Release of Transcript Restriction set

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 18 of 30

10/03/2013
10/03/2013
10/04/2013 10/04/2013 10/04/2013 10/04/2013 10/08/2013 10/09/2013 10/15/2013 10/18/2013 10/18/2013

for 1/4/2014.(Rodriguez, Somari) (Entered: 10/03/2013)
122 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 9/20/13 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 10/03/2013)
123 MEMORANDUM DECISION & ORDER: Based upon the applicable legal standards and the Court's in camera review, the Court hereby ORDERS that counsel for the City Defendants perform a careful, document−by−document re−review of the withheld materials. The Court expects that a substantial number of documents will come off the log and will be produced. Such re−review should occur within the next 30 days. Plaintiffs may renew their motion as to the City Defendants if they deem it appropriate, following that re−review and anticipated subsequent production. The Court notes that the files withheld on the basis of the deliberative process privilege for the two other selected document custodians are shortly to be provided for the Court's in camera review. Should the above guidance require additional review of the documents to be produced prior to in camera production, the Defendants may make such an application and the Court would allow additional time for that to occur. (Signed by Judge Katherine B. Forrest on 10/3/2013) (mro) (Entered: 10/04/2013)
124 LETTER MOTION for Extension of Time to File declaration and documents related to assertion of the deliberative process privilege addressed to Judge Katherine B. Forrest from AAG John Gasior dated October 4, 2013. Document filed by Kristin Proud, The New York State Office of Temporary and Disability Assistance.(Gasior, John) (Entered: 10/04/2013)
125 LETTER addressed to Judge Katherine B. Forrest from Tara M. La Morte dated October 4, 2013 re: Government Shutdown. Document filed by United States Department of Agriculture, Tom Vilsack.(La Morte, Tara) (Entered: 10/04/2013)
126 MEMO ENDORSEMENT on re: 125 Letter filed by Tom Vilsack, United States Department of Agriculture. ENDORSEMENT: Ordered: This case is stayed as to the federal defendant only. (Signed by Judge Katherine B. Forrest on 10/4/2013) (mro) (Entered: 10/07/2013)
127 ORDER granting 124 Letter Motion for Extension of Time to File. Ordered: The Court is not staying the action except as to the Federal defendant. One week extension granted. (Signed by Judge Katherine B. Forrest on 10/4/2013) (mro) (Entered: 10/07/2013)
129 LETTER MOTION for Extension of Time to File Answer addressed to Judge Katherine B. Forrest from John Gasior dated October 8, 2013. Document filed by Kristin Proud, The New York State Office of Temporary and Disability Assistance.(Gasior, John) (Entered: 10/08/2013)
130 ORDER granting 129 Letter Motion for Extension of Time to Answer . ENDORSEMENT: Ordered: Application granted. Kristin Proud answer due 10/15/2013; The New York State Office of Temporary and Disability Assistance answer due 10/15/2013. (Signed by Judge Katherine B. Forrest on 10/9/2013) (mro) Modified on 10/9/2013 (mro). (Entered: 10/09/2013)
131 ANSWER to 41 Amended Complaint,. Document filed by Kristin Proud, The New York State Office of Temporary and Disability Assistance.(Gasior, John) (Entered: 10/15/2013)
132 LETTER addressed to Judge Katherine B. Forrest from Tara M. La Morte dated October 18, 2013 re: Request for Extension in light of Government Shutdown. Document filed by United States Department of Agriculture, Tom Vilsack.(La Morte, Tara) (Entered: 10/18/2013)
133 MEMO ENDORSEMENT on re: 132 Letter filed by Tom Vilsack, United States Department of Agriculture. ENDORSEMENT: Ordered: The Court agrees to the above schedule and that it should apply to ALL parties. (Signed by Judge Katherine B.

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 19 of 30

10/18/2013 10/22/2013
10/22/2013 10/23/2013 10/29/2013 10/29/2013 11/14/2013 11/20/2013 11/22/2013

Forrest on 10/18/2013) (mro) (Entered: 10/18/2013)
Set/Reset Deadlines: ( Deposition due by 2/20/2014., Discovery due by 12/23/2013., Expert Discovery due by 3/20/2014.), Set/Reset Hearings:( Final Pretrial Conference set for 5/6/2014 at 01:00 PM before Judge Katherine B. Forrest.) (mro) (Entered: 10/18/2013)
134 ORDER: Currently pending before this Court is a letter motion by Plaintiffs requesting that the Court issue an Order disallowing Defendants' assertion of the deliberative process privilege. (See ECF No. 98.) Pursuant to a Court−Ordered procedure, Defendants and Plaintiffs agreed upon certain custodians as to whom all documents withheld on the basis of such privilege would be provided to the Court for in camera review. (See ECF No. 105.) On October 15, 2013, the State Defendants submitted documents for which they are claiming deliberative process privilege. The Court has reviewed each of the documents submitted for in camera review. With one possible exception, the Court agrees that the documents fall within the parameters of the deliberative process privilege. The Court does not believe Document No. 11972 contains deliberative or decisional content. The State Defendants are directed to re−review this document and inform the Court within seven days whether they wish to maintain or withdraw their assertion of deliberative process privilege over this document. (Signed by Judge Katherine B. Forrest on 10/22/2013) (mro) (Entered: 10/22/2013)
135 NOTICE OF APPEARANCE by Thomas B. Roberts on behalf of Robert Doar, The New York City Human Rights Resources Administration. (Roberts, Thomas) (Entered: 10/22/2013)
136 LETTER addressed to Judge Katherine B. Forrest from Tara M. La Morte dated October 23, 2013 re: Federal Defendants' Response to Plaintiffs' Supplementation of Record on Motion to Dismiss. Document filed by United States Department of Agriculture, Tom Vilsack. (Attachments: # 1 Exhibit Declaration of Elizabeth Weber, # 2 Exhibit Declaration of Casey McConnell, # 3 Exhibit Declaration of Alonso Rodriguez)(La Morte, Tara) (Entered: 10/23/2013)
137 ORDER: On October 28, 2013, the Federal Defendants submitted documents for which they are claiming deliberative process privilege. The Court has reviewed each of the documents submitted for in camera review and finds that the portions noted by counsel with red boxes fall within the parameters of the deliberative process privilege. (Signed by Judge Katherine B. Forrest on 10/29/2013) (tn) (Entered: 10/29/2013)
138 ENDORSED LETTER addressed to Judge Katherine B. Forrest from John Gasior dated 10/29/2013 re: Pursuant to the Court's September 21, 2013 Order (Dkt. No. 134), State Defendants' submit the Supplemental Declaration of Phyllis Morris in support of the deliberative process privilege for document CRTLOTDA0011972. ENDORSEMENT: Based on the additional declaration, the Court does not require disclosure of 11972. (Signed by Judge Katherine B. Forrest on 10/29/2013) (tn) (Entered: 10/29/2013)
139 OPINION & ORDER # 103770 re: 67 MOTION to Dismiss Second Amended Complaint filed by Tom Vilsack, United States Department of Agriculture. For the reasons set forth above, the Court GRANTS the federal defendants' motion to dismiss. The Clerk of Court shall terminate motion located at ECF No. 67. (Signed by Judge Katherine B. Forrest on 11/14/2013) (mro) Modified on 11/25/2013 (ca). (Entered: 11/15/2013)
Minute Entry for proceedings held before Judge Katherine B. Forrest: Status Conference held on 11/20/2013. (jp) (Entered: 11/26/2013)
140 ORDER: All motions for summary judgment shall be fully briefed by 4/18/2014. To the extent that Daubert motions are necessary to such summary judgment motions, those motions shall also be fully briefed by 4/18/2014. Motions in limine and any Daubert motions not necessary to decide summary judgment shall be filed not later than 4/18/2014. Oppositions shall be submitted no later than 5/2/2014. All final pretrial materials shall be filed not later than 4/29/2014. Defendants and plaintiffs shall submit any requests or motions concerning the Court's recent dismissal of the federal defendants from this action as soon as is practicable, but not later than 12/13/2013. (Motions due by 4/18/2014, Responses due by 5/2/2014) (Signed by Judge Katherine

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 20 of 30

12/13/2013 12/13/2013 12/13/2013 12/13/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/17/2013 12/17/2013 12/17/2013 12/18/2013

B. Forrest on 11/22/2013) (tn) (Entered: 11/22/2013)
141 FILING ERROR − ELECTRONIC FILING OF NON−ECF DOCUMENT − MOTION to Dismiss for Lack of Jurisdiction. Document filed by Kristin Proud, The New York State Office of Temporary and Disability Assistance. Responses due by 12/18/2013(Gasior, John) Modified on 12/16/2013 (db). (Entered: 12/13/2013)
142 FILING ERROR − ELECTRONIC FILING OF NON−ECF DOCUMENT − MOTION to Dismiss. Document filed by The New York City Human Rights Resources Administration.(Longley, Serena) Modified on 12/16/2013 (db). (Entered: 12/13/2013)
143 MOTION for Reconsideration re; 139 Memorandum & Opinion,. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T..(Mastro, Randy) (Entered: 12/13/2013)
144 MEMORANDUM OF LAW in Support re: 143 MOTION for Reconsideration re; 139 Memorandum & Opinion,.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Mastro, Randy) (Entered: 12/13/2013)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − NON−ECF DOCUMENT ERROR. Note to Attorney John Peter Gasior. Document No. 141 Letter. This document is not filed via ECF. The Court permits the filing of letters including certain types of letter motions, a Motion to Dismiss for Lack of Jurisdiction must be formally filed. (db) (Entered: 12/16/2013)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − NON−ECF DOCUMENT ERROR. Note to Attorney Serena Mabel Longley. Document No. 142 Letter. This document is not filed via ECF. The Court permits the filing of letters including certain types of letter motions, a Motion to Dismiss must be formally filed. (db) (Entered: 12/16/2013)
145 LETTER addressed to Judge Katherine B. Forrest from John Gasior, AAG dated December 13, 2013 re: Toney−Dick v. Doar − State Defendants' Response to Dismissal of Federal Defendants. Document filed by Kristin Proud, The New York State Office of Temporary and Disability Assistance.(Gasior, John) (Entered: 12/16/2013)
146 LETTER addressed to Judge Katherine B. Forrest from Serena Longley dated December 16, 2013 re: Motion to Dismiss originally filed December 13, 2013. Document filed by Robert Doar, The New York City Human Rights Resources Administration.(Longley, Serena) (Entered: 12/16/2013)
147 LETTER addressed to Judge Katherine B. Forrest from Goutam U. Jois dated December 16, 2013 re: City and State Defendants' Motion to Dismiss. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T..(Jois, Goutam) (Entered: 12/16/2013)
148 LETTER MOTION for Extension of Time Concerning Federal Defendants' Opposition to Motion for Reconsideration addressed to Judge Katherine B. Forrest from Tara M. La Morte dated December 17, 2013. Document filed by United States Department of Agriculture, Tom Vilsack.(La Morte, Tara) (Entered: 12/17/2013)
149 ORDER granting 148 Letter Motion for Extension of Time. Ordered: Application granted. (Signed by Judge Katherine B. Forrest on 12/17/2013) (mro) (Entered: 12/17/2013)
150 MEMO ENDORSEMENT on re: 147 Letter filed by Sherry Hanan, Renee Moore, X.T., Alechea Toney−Dick. ENDORSEMENT: Ordered: The Court would find it helpful to have the plaintiffs' response on the 12(c) when reviewing all pending motions. In light of the holidays, if you need an extra week, let the Court know. (Signed by Judge Katherine B. Forrest on 12/17/2013) (mro) (Entered: 12/17/2013)
151 LETTER addressed to Judge Katherine B. Forrest from Goutam U. Jois dated December 18, 2013 re: Plaintiffs' Confirmation of Response Date. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T..(Jois, Goutam) (Entered: 12/18/2013)

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 21 of 30

12/30/2013
12/30/2013 12/31/2013 12/31/2013 12/31/2013 01/06/2014 01/06/2014 01/08/2014
01/08/2014 01/09/2014 01/09/2014 01/09/2014 01/09/2014

152 FILING ERROR − DEFICIENT DOCKET ENTRY − MEMORANDUM OF LAW in Opposition re: 141 MOTION to Dismiss for Lack of Jurisdiction., 142 MOTION to Dismiss. PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO THE CITY DEFENDANTS' AND STATE DEFENDANTS' MOTIONS TO DISMISS. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Mastro, Randy) Modified on 12/31/2013 (db). (Entered: 12/30/2013)
153 FILING ERROR − DEFICIENT DOCKET ENTRY − DECLARATION of KENNETH STEPHENS in Opposition re: 141 MOTION to Dismiss for Lack of Jurisdiction., 142 MOTION to Dismiss.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Attachments: # 1 Exhibit 1)(Mastro, Randy) Modified on 12/31/2013 (db). (Entered: 12/30/2013)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Randy M. Mastro to RE−FILE Document 152 Memorandum of Law in Opposition to Motion, 153 Declaration in Opposition to Motion. ERROR(S): Documents linked to filing error. (db) (Entered: 12/31/2013)
154 MEMORANDUM OF LAW in Opposition re: 146 Letter, 145 Letter, PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO THE CITY DEFENDANTS' AND STATE DEFENDANTS' MOTIONS TO DISMISS. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Mastro, Randy) (Entered: 12/31/2013)
155 DECLARATION of KENNETH STEPHENS in Opposition re: 146 Letter, 145 Letter,. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Attachments: # 1 Exhibit 1)(Mastro, Randy) (Entered: 12/31/2013)
156 LETTER addressed to Judge Katherine B. Forrest from John Gasior dated January 6, 2014 re: Reply to plaintiffs. Document filed by Kristin Proud, The New York State Office of Temporary and Disability Assistance.(Gasior, John) (Entered: 01/06/2014)
157 LETTER REPLY to Response to Motion addressed to Judge Katherine B. Forrest from Thomas B. Roberts, Assistant Corporation Counsel dated Jan. 6, 2014 re: 142 MOTION to Dismiss.. Document filed by The New York City Human Rights Resources Administration. (Roberts, Thomas) (Entered: 01/06/2014)
158 ORDER: The parties are hereby ORDERED to appear for a telephonic conference in the above−referenced matter on January 9, 2014 at 12:30 P.M. Counsel for the USDA shall also appear. All parties shall call chambers (212−805−0139) from a single line at the time of the conference. ( Telephone Conference set for 1/9/2014 at 12:30 PM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 1/8/2014) (mro) (Entered: 01/08/2014)
159 FILING ERROR − ELECTRONIC FILING OF NON−ECF DOCUMENT − MOTION to Substitute Party. Old Party: New York City Human Resources Administration, New Party: City of New York. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Jois, Goutam) Modified on 1/9/2014 (db). (Entered: 01/08/2014)
160 NOTICE OF APPEARANCE by Linda Fang on behalf of Kristin Proud, The New York State Office of Temporary and Disability Assistance. (Fang, Linda) (Entered: 01/09/2014)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − NON−ECF DOCUMENT ERROR. Note to Attorney Goutam Umesh Jois. Document No. 159 Letter. This document is not filed via ECF. The Court permits the filing of letters including certain types of letter motions, a Motion to Substitute Party or Leave to File a Document must be formally filed. (db) (Entered: 01/09/2014)
161 LETTER addressed to Judge Katherine B. Forrest from Goutam Jois dated January 8, 2014 re: party substitution. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Jois, Goutam) (Entered: 01/09/2014)
162 ORDER: On January 9, 2014, a telephonic conference was held in the above−referenced action. Pursuant to what was discussed during that conference, the parties are hereby ORDERED to notify the Court no later than January 21, 2014

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 22 of 30

01/21/2014 01/21/2014 01/21/2014 01/21/2014 01/22/2014 01/23/2014
01/23/2014 01/24/2014 02/03/2014

whether they believe it would be worthwhile to engage in either formal or informal discussions regarding a possible pre−trial resolution of this matter. If they believe such discussions might prove worthwhile, the parties shall indicate at that time whether they desire a referral to the assigned magistrate judge. (Signed by Judge Katherine B. Forrest on 1/9/2014) (mro) (Entered: 01/09/2014)
163 MEMORANDUM OF LAW in Opposition re: 143 MOTION for Reconsideration re; 139 Memorandum & Opinion,.. Document filed by United States Department of Agriculture, Tom Vilsack. (La Morte, Tara) (Entered: 01/21/2014)
164 DECLARATION of Tara M. La Morte in Opposition re: 143 MOTION for Reconsideration re; 139 Memorandum & Opinion,.. Document filed by United States Department of Agriculture, Tom Vilsack. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(La Morte, Tara) (Entered: 01/21/2014)
165 LETTER addressed to Judge Katherine B. Forrest from Tara M. La Morte dated January 21, 2014 re: The Court's Order dated January 9, 2014. Document filed by United States Department of Agriculture, Tom Vilsack.(La Morte, Tara) (Entered: 01/21/2014)
166 JOINT LETTER addressed to Judge Katherine B. Forrest from Linda Fang dated January 21, 2014 re: The Court's Order, dated January 9, 2014. Document filed by Kristin Proud, The New York State Office of Temporary and Disability Assistance.(Fang, Linda) (Entered: 01/21/2014)
167 LETTER addressed to Judge Katherine B. Forrest from Serena Longley dated January 22, 2014 re: City Defendants Opposition to Plaintiffs' Request for Leave to Amend (Dkt. # 161). Document filed by Robert Doar, The New York City Human Rights Resources Administration.(Longley, Serena) (Entered: 01/22/2014)
168 ORDER: All motions for summary judgment shall be fully briefed by July 10, 2014. Motions in limine and any Daubert motions not necessary to decide summaryjudgment due by 8/13/2014. Responses due by 8/22/2014. Final Pretrial Conference set for 9/4/2014 at 01:00 PM before Judge Katherine B. Forrest. Trial shall commence on September 8, 2014. Status Conference set for 4/4/2014 at 01:00 PM before Judge Katherine B. Forrest. All pending motions in this matter are hereby terminated, with leave to renew should the settlement discussions fail. The Court shall forthwith issue a referral to Magistrate Judge Peck, should the parties desire to meet with him. The Clerk of Court is directed to terminate all pending motions in this action. (Signed by Judge Katherine B. Forrest on 1/22/2014) (ft) (Entered: 01/23/2014)
169 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement. Referred to Magistrate Judge Andrew J. Peck. (Signed by Judge Katherine B. Forrest on 1/22/2014) (ft) (Entered: 01/23/2014)
170 MEMO ENDORSEMENT on re: 167 Letter, filed by Robert Doar, The New York City Human Rights Resources Administration. ENDORSEMENT: Ordered: This motion shall be held in abeyance pending the discussions between the parties, and per the Court's Order of Jan. 23, 2014. (Signed by Judge Katherine B. Forrest on 1/24/2014) (mro) (Entered: 01/24/2014)
171 ORDER FOR SETTLEMENT CONFERENCE: A settlement conference is scheduled for March 25, 2014 at 9:30 AM before Magistrate Judge Andrew J. Peck in Courtroom 20D, 500 Pearl Street. Counsel attending the conference must have full settlement authority and their client(s) must be present at the conference, as must a representative of the client's insurance company where the decision to settle and/or amount of settlement must be approved by the insurance company. Counsel shall provide a confidential settlement memorandum to my chambers. The memorandum shall not be filed with the Clerk of the Court nor provided to opposing counsel. The memorandum should explain the factual and legal background of the case as it impacts on settlement negotiations; the status of prior settlement discussions between the parties; and the party's settlement proposal (range). See Order., ( Settlement Conference set for 3/25/2014 at 09:30 AM in Courtroom 20D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Andrew J. Peck.) (Signed by Magistrate Judge Andrew J. Peck on 1/31/2014) (lmb) (Entered: 02/03/2014)

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 23 of 30

03/11/2014 03/12/2014 03/12/2014 03/13/2014
04/25/2014 05/02/2014 05/05/2014 05/06/2014
06/25/2014 06/26/2014 06/27/2014

172 LETTER MOTION for Extension of Time addressed to Judge Katherine B. Forrest from Serena Longley dated March 11, 2014. Document filed by Robert Doar, The New York City Human Rights Resources Administration.(Longley, Serena) (Entered: 03/11/2014)
173 ORDER granting 172 Letter Motion for Extension of Time: SO ORDERED. The Court hereby grants the first request, regarding the 45−day extension. Additionally, the Court hereby adjourns the status conference currently scheduled for April 4, 2014 to May 22, 2014 at 1:00 p.m. With respect to the second request, Judge Peck shall issue an Order on that point. (Signed by Judge Katherine B. Forrest on 3/12/2014) (kgo) (Entered: 03/12/2014)
Set/Reset Hearings: Status Conference set for 5/22/2014 at 01:00 PM before Judge Katherine B. Forrest. (kgo) (Entered: 03/12/2014)
174 ENDORSED LETTER addressed to Magistrate Judge Andrew J. Peck from Serena Longley dated 3/11/2014 re: Therefore, the parties respectfully request that the trial date and all interim litigation deadlines be extended an additional 45 days under the same conditions set forth in the Court's January 23, 2014 Order and that the March 25, 2014 settlement conference with Judge Peck be rescheduled for a date in mid− May. ENDORSEMENT: Granted. The Settlement Conference is rescheduled to Tuesday, May 13, 2014 at 2:00 p.m. in Courtroom 20D. SO ORDERED., ( Settlement Conference set for 5/13/2014 at 02:00 PM in Courtroom 20D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Andrew J. Peck.) (Signed by Magistrate Judge Andrew J. Peck on 3/13/2014) (ama) (Entered: 03/13/2014)
175 NOTICE OF CHANGE OF ADDRESS by Thomas B. Roberts on behalf of Robert Doar, The New York City Human Rights Resources Administration. New Address: City of New York Law Department, 100 Church Street, New York, NY, USA 100007, 212 356 0872. (Roberts, Thomas) (Entered: 04/25/2014)
176 SECOND LETTER MOTION to Adjourn Conference and Trial Date addressed to Judge Katherine B. Forrest from Serena Longley dated May 2, 2014. Document filed by Robert Doar, The New York City Human Rights Resources Administration.(Longley, Serena) (Entered: 05/02/2014)
177 ORDER granting 176 Letter Motion to Adjourn Conference: Ordered: 1. Trial date adjourned to November 17, 2014. 2. Status Conference adjourned to July 18, 2014 at 1pm. Status Conference set for 7/18/2014 at 01:00 PM before Judge Katherine B. Forrest. (Signed by Judge Katherine B. Forrest on 5/2/2014) (tn) (Entered: 05/05/2014)
178 MEMO ENDORSEMENT on re: 176 SECOND LETTER MOTION to Adjourn Conference and Trial Date addressed to Judge Katherine B. Forrest from Serena Longley dated May 2, 2014. filed by Robert Doar, The New York City Human Rights Resources Administration, 177 Order on Motion to Adjourn Conference. ENDORSEMENT: Settlement conf. adjourned at parties request from May 13 to July 3 at 9:30 AM. (Settlement Conference set for 7/3/2014 at 09:30 AM before Magistrate Judge Andrew J. Peck.) (Signed by Magistrate Judge Andrew J. Peck on 5/6/2014) (ajs) (Entered: 05/06/2014)
179 LETTER addressed to Magistrate Judge Andrew J. Peck from Sumani Lanka dated June 25, 2014 re: Status of the Action. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T..(Lanka, Sumani) (Entered: 06/25/2014)
180 MEMO ENDORSEMENT on re: 179 Letter filed by Sherry Hanan, Renee Moore, X.T., Alechea Toney−Dick. ENDORSEMENT: The July 3 settlement conference is adjourned until August 7th at 9:30 a.m. Settlement memos are due one week prior. (See Dkt. No. 171) SO ORDERED. (Signed by Magistrate Judge Andrew J. Peck on 6/26/2014) (ajs) (Entered: 06/26/2014)
181 ORDER: The Court hereby ORDERS that the status conference currently set to occur before the undersigned on July 18, 2014 is adjourned to September 23, 2014 at 1:30 p.m. The Court shall set forth a schedule to govern the remainder of the litigation (if the parties have not settled) at that time. In the meantime, for the sake of clarity on the docket, all dates and deadlines currently set are adjourned. SO ORDERED. (Status Conference set for 9/23/2014 at 01:30 PM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 6/26/2014) (kgo) (Entered: 06/27/2014)

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 24 of 30

07/11/2014 07/15/2014 07/15/2014 07/31/2014 08/07/2014 09/05/2014
09/08/2014
09/19/2014 09/22/2014
09/22/2014 09/22/2014
09/22/2014
10/02/2014

182 NOTICE of Withdrawal of Appearance re: 13 Notice of Appearance. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Nematzadeh, Justin) (Entered: 07/11/2014)
183 NOTICE OF APPEARANCE by Christine Louise Demana on behalf of Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Demana, Christine) (Entered: 07/15/2014)
184 NOTICE OF APPEARANCE by Seth Rokosky on behalf of Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Rokosky, Seth) (Entered: 07/15/2014)
185 LETTER addressed to Magistrate Judge Andrew J. Peck from Serena Longley dated July 31, 2014 re: August 7 Settlement Conference Attendees. Document filed by Robert Doar, The New York City Human Rights Resources Administration.(Longley, Serena) (Entered: 07/31/2014)
Minute Entry for proceedings held before Magistrate Judge Andrew J. Peck: Settlement Conference held on 8/7/2014. Settlement update letters due 9/5. (Gray, Diane) (Entered: 08/07/2014)
186 LETTER addressed to Magistrate Judge Andrew J. Peck from Thomas B. Roberts dated Sept. 5, 2014 re: Status of settlement negotiations. Document filed by Robert Doar, Sherry Hanan, Renee Moore, Kristin Proud, The New York City Human Rights Resources Administration, The New York State Office of Temporary and Disability Assistance, Alechea Toney−Dick, United States Department of Agriculture, Tom Vilsack, X.T..(Roberts, Thomas) (Entered: 09/05/2014)
187 MEMO ENDORSEMENT on re: 186 Letter, filed by Kristin Proud, Robert Doar, Sherry Hanan, The New York City Human Rights Resources Administration, Renee Moore, Alechea Toney−Dick, United States Department of Agriculture, X.T., Tom Vilsack, The New York State Office of Temporary and Disability Assistance. ENDORSEMENT: Approved. Next status report due 9/9/14. (Signed by Magistrate Judge Andrew J. Peck on 9/8/2014) (tn) (Entered: 09/08/2014)
188 STATUS REPORT. To Magistrate Judge Peck from all parties. Document filed by Robert Doar, Sherry Hanan, Renee Moore, Kristin Proud, The New York City Human Rights Resources Administration, The New York State Office of Temporary and Disability Assistance, Alechea Toney−Dick, X.T..(Gasior, John) (Entered: 09/19/2014)
189 MEMO ENDORSEMENT on re: 188 Status Report, filed by Kristin Proud, Robert Doar, Sherry Hanan, The New York City Human Rights Resources Administration, Renee Moore, Alechea Toney−Dick, X.T., The New York State Office of Temporary and Disability Assistance. ENDORSEMENT: Approved. Next status letter due 10/3/14. (Signed by Magistrate Judge Andrew J. Peck on 9/22/2014) (tn) (Entered: 09/22/2014)
190 ORDER: The status conference on Tuesday, September 23, 2014 is hereby rescheduled from 1:30 p.m. to 12:30 p.m., ( Status Conference set for 9/23/2014 at 12:30 PM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 9/22/2014) (lmb) (Entered: 09/22/2014)
191 LETTER addressed to Judge Katherine B. Forrest from Thomas B. Roberts dated Sept. 22, 2014 re: Rescheduling of conference scheduled for Sept. 23, 2014. Document filed by Robert Doar, Sherry Hanan, Renee Moore, Kristin Proud, The New York City Human Rights Resources Administration, The New York State Office of Temporary and Disability Assistance, Alechea Toney−Dick.(Roberts, Thomas) (Entered: 09/22/2014)
192 MEMO ENDORSEMENT on re: 191 Letter, filed by Kristin Proud, Robert Doar, Sherry Hanan, The New York City Human Rights Resources Administration, Renee Moore, Alechea Toney−Dick, The New York State Office of Temporary and Disability Assistance. ENDORSEMENT: Ordered: Conference adjourned to 10/9/14 at 2 pm. (Status Conference set for 10/9/2014 at 02:00 PM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 9/22/2014) (tn) (Entered: 09/22/2014)
193 LETTER addressed to Magistrate Judge Andrew J. Peck from Thomas B. Roberts dated October 2, 2014 re: report on status of settlement negotiations. Document filed

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 25 of 30

10/03/2014 10/03/2014 10/06/2014 10/07/2014 10/24/2014 10/27/2014 11/03/2014 11/04/2014 11/14/2014

by Robert Doar, Sherry Hanan, Renee Moore, Kristin Proud, The New York City Human Rights Resources Administration, The New York State Office of Temporary and Disability Assistance, Alechea Toney−Dick.(Roberts, Thomas) (Entered: 10/02/2014)
194 MEMO ENDORSEMENT on re: 193 Letter, filed by Kristin Proud, Robert Doar, Sherry Hanan, The New York City Human Rights Resources Administration, Renee Moore, Alechea Toney−Dick, The New York State Office of Temporary and Disability Assistance. ENDORSEMENT: Approved. Next report due 10/24/14. (Signed by Magistrate Judge Andrew J. Peck on 10/3/2014) (tn) (Entered: 10/03/2014)
196 MEMO ENDORSEMENT on re: 193 Letter, filed by Kristin Proud, Robert Doar, Sherry Hanan, The New York City Human Rights Resources Administration, Renee Moore, Alechea Toney−Dick, The New York State Office of Temporary and Disability Assistance. ENDORSEMENT: Please respond back as you've indicated −− on 10/24/14. (Signed by Judge Katherine B. Forrest on 10/3/2014) (lmb) (Entered: 10/07/2014)
195 LETTER addressed to Judge Katherine B. Forrest from Thomas B. Roberts dated October 6, 2014 re: Report on status of settlement negotiations and request of all parties to postpone conference scheduled for October 9, 2014 at 2:00 p.m.. Document filed by Robert Doar, Sherry Hanan, Renee Moore, Kristin Proud, The New York City Human Rights Resources Administration, The New York State Office of Temporary and Disability Assistance, Alechea Toney−Dick.(Roberts, Thomas) (Entered: 10/06/2014)
197 MEMO ENDORSEMENT on re: 195 Letter, filed by Kristin Proud, Robert Doar, Sherry Hanan, The New York City Human Rights Resources Administration, Renee Moore, Alechea Toney−Dick, The New York State Office of Temporary and Disability Assistance. ENDORSEMENT: Conference adjourned to 11/7/14 at 10:30 am., ( Status Conference set for 11/7/2014 at 10:30 AM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 10/7/2014) (lmb) (Entered: 10/07/2014)
198 LETTER addressed to Magistrate Judge Andrew J. Peck from Thomas B. Roberts dated Oct. 24, 2014 re: Report on status of settlement negotiations. Document filed by Robert Doar, Sherry Hanan, Renee Moore, Kristin Proud, The New York City Human Rights Resources Administration, The New York State Office of Temporary and Disability Assistance, Alechea Toney−Dick.(Roberts, Thomas) (Entered: 10/24/2014)
199 MEMO ENDORSEMENT on re: 198 Letter, filed by Kristin Proud, Robert Doar, Sherry Hanan, The New York City Human Rights Resources Administration, Renee Moore, Alechea Toney−Dick, The New York State Office of Temporary and Disability Assistance. ENDORSEMENT: Approved− next report due 11/14/14. (Signed by Magistrate Judge Andrew J. Peck on 10/24/2014) (tro) (Entered: 10/27/2014)
200 LETTER addressed to Judge Katherine B. Forrest from Thomas B. Roberts dated Nov. 3, 2014 re: Status of settlement negotiations and joint request to reschedule the conference currently scheduled for November 7, 2014. Document filed by Robert Doar, Sherry Hanan, Renee Moore, Kristin Proud, The New York City Human Rights Resources Administration, The New York State Office of Temporary and Disability Assistance, Alechea Toney−Dick.(Roberts, Thomas) (Entered: 11/03/2014)
201 MEMO ENDORSEMENT on re: 200 Letter, filed by Kristin Proud, Robert Doar, Sherry Hanan, The New York City Human Rights Resources Administration, Renee Moore, Alechea Toney−Dick, The New York State Office of Temporary and Disability Assistance. ENDORSEMENT: So ordered. Conference adjourned to 11/21 at 1PM. (Status Conference set for 11/21/2014 at 01:00 PM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 11/4/2014) (tro) (Entered: 11/04/2014)
202 LETTER addressed to Magistrate Judge Andrew J. Peck from Thomas B. Roberts dated Nov. 14, 2014 re: Report on status of settlement negotiations. Document filed by Robert Doar, Sherry Hanan, Renee Moore, Kristin Proud, The New York City Human Rights Resources Administration, The New York State Office of Temporary and Disability Assistance, Alechea Toney−Dick.(Roberts, Thomas) (Entered: 11/14/2014)

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 26 of 30

11/19/2014 11/19/2014 11/20/2014 12/01/2014 12/05/2014 12/05/2014 12/17/2014 12/17/2014
12/31/2014
12/31/2014
01/07/2015

203 LETTER MOTION to Adjourn Conference addressed to Judge Katherine B. Forrest from John Gasior for all parties dated November 19, 2014. Document filed by Robert Doar, Sherry Hanan, Renee Moore, Kristin Proud, The New York City Human Rights Resources Administration, The New York State Office of Temporary and Disability Assistance, Alechea Toney−Dick.(Gasior, John) (Entered: 11/19/2014)
204 MEMO ENDORSEMENT on re: 202 Letter, filed by Kristin Proud, Robert Doar, Sherry Hanan, The New York City Human Rights Resources Administration, Renee Moore, Alechea Toney−Dick, The New York State Office of Temporary and Disability Assistance. ENDORSEMENT: Approved. Next status letter due 12/5/14. (Signed by Magistrate Judge Andrew J. Peck on 11/19/2014) (tn) (Entered: 11/19/2014)
205 ORDER granting 203 Letter Motion to Adjourn Conference. Conference adjourned to 12/17/14 at 11 am. We will meet then (don't request an adjournment) if you have not settled and set a schedule for disposition. Status Conference set for 12/17/2014 at 11:00 AM before Judge Katherine B. Forrest. (Signed by Judge Katherine B. Forrest on 11/19/2014) (lmb) (Entered: 11/20/2014)
206 MEMO ENDORSEMENT on re: 182 Notice (Other) filed by Sherry Hanan, Renee Moore, X.T., Alechea Toney−Dick. ENDORSEMENT: So ordered. (Signed by Judge Katherine B. Forrest on 12/1/2014) (lmb) (Entered: 12/01/2014)
207 LETTER addressed to Magistrate Judge Andrew J. Peck from Thomas B. Roberts dated Dec. 5, 2014 re: status of settlement negotiations. Document filed by Robert Doar, The New York City Human Rights Resources Administration.(Roberts, Thomas) (Entered: 12/05/2014)
208 MEMO ENDORSEMENT on re: 207 Letter filed by Robert Doar, The New York City Human Rights Resources Administration. ENDORSEMENT: Next report due 1/9/15 (subject to any different ruling from Judge Forrest at the 12/17/14 conference). (Signed by Magistrate Judge Andrew J. Peck on 12/5/2014) (tn) (Entered: 12/05/2014)
Minute Entry for proceedings held before Judge Katherine B. Forrest: Status Conference held on 12/17/2014. (jp) (Entered: 12/18/2014)
209 ORDER: On December 17, 2014, a status conference was held in the above−referenced matter. As set forth on the record: 1. Defendants shall file a summary judgment submission not later than January 30, 2015; plaintiffs' opposition is due February 16, 2015; replies are due February 25, 2015. As the parties anticipate largely legal issues (though plaintiffs may want to raise certain fact issues), the Court waived 56.1 submissions and stated that the parties may also proceed with letter briefs. 3. A status conference is scheduled for February 27, 2015 at 1:00 p.m. 4. The parties shall continue with settlement discussions before Judge Peck. (Motions due by 1/30/2015., Responses due by 2/16/2015, Replies due by 2/25/2015.), ( Status Conference set for 2/27/2015 at 01:00 PM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 12/17/2014) (djc) (Entered: 12/18/2014)
210 TRANSCRIPT of Proceedings re: CONFERENCE held on 12/17/2014 before Judge Katherine B. Forrest. Court Reporter/Transcriber: Andrew Walker, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/26/2015. Redacted Transcript Deadline set for 2/5/2015. Release of Transcript Restriction set for 4/3/2015.(McGuirk, Kelly) (Entered: 12/31/2014)
211 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a conference proceeding held on 12/17/2014 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 12/31/2014)
212 LETTER addressed to Magistrate Judge Andrew J. Peck from Goutam U. Jois dated January 7, 2015 re: Settlement Discussions. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T..(Jois, Goutam) (Entered: 01/07/2015)

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 27 of 30

01/13/2015
01/13/2015 01/14/2015 01/22/2015 01/29/2015 01/29/2015 01/30/2015 02/25/2015 02/25/2015 03/11/2015 03/11/2015 03/19/2015

213 ORDER FOR SETTLEMENT CONFERENCE: Settlement Conference set for 1/21/2015 at 02:00 PM in Courtroom 20D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Andrew J. Peck. Counsel attending the conference must have full settlement authority and their client(s) must be present at the conference, as must a representative of the client's insurance company where the decision to settle and/or amount of settlement must be approved by the insurance company. Counsel shall provide a confidential settlement memorandum to my chambers. The memorandum shall not be filed with the Clerk of the Court nor provided to opposing counsel. The memorandum should explain the factual and legal background of the case as it impacts on settlement negotiations; the status of prior settlement discussions between the parties; and the party's settlement proposal (range). See Order. (Signed by Magistrate Judge Andrew J. Peck on 1/12/2015) (ajs) (Entered: 01/13/2015)
214 LETTER addressed to Magistrate Judge Andrew J. Peck from Goutam U. Jois dated January 13, 2015 re: confirmation that the parties may submit letters in lieu of settlement memoranda. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T..(Jois, Goutam) (Entered: 01/13/2015)
215 MEMO ENDORSEMENT on re: 214 Letter, filed by Sherry Hanan, Renee Moore, X.T., Alechea Toney−Dick. ENDORSEMENT: APPROVED. (Signed by Magistrate Judge Andrew J. Peck on 1/14/2015) (tn) (Entered: 01/14/2015)
Minute Entry for proceedings held before Magistrate Judge Andrew J. Peck: Settlement Conference held on 1/21/2015. Plaintiff to provide atty fee cap by 1/30. (Gray, Diane) (Entered: 01/22/2015)
216 LETTER addressed to Magistrate Judge Andrew J. Peck from John Gasior dated January 29, 2015 re: Settlement of Prospective Relief. Document filed by Robert Doar, Sherry Hanan, Renee Moore, Kristin Proud, The New York City Human Rights Resources Administration, The New York State Office of Temporary and Disability Assistance, Alechea Toney−Dick, X.T..(Gasior, John) (Entered: 01/29/2015)
217 JOINT LETTER addressed to Judge Katherine B. Forrest from Kenneth Stephens dated January 29, 2015 re: Settlement Agreement in Principle. Document filed by Alechea Toney−Dick.(Stephens, Kenneth) (Entered: 01/29/2015)
218 MEMO ENDORSEMENT on re: 217 Letter filed by Alechea Toney−Dick requesting in lieu of the scheduled summary judgment briefing, they submit to the Court a signed stipulation of settlement within thirty days. So ordered. (Sounds like terrific progress!) (Signed by Judge Katherine B. Forrest on 1/30/2015) (spo) (Entered: 01/30/2015)
219 JOINT LETTER MOTION to Adjourn Conference scheduled for Feb. 27, 2015 at 1:00 pm to another date or to cancel the conference addressed to Judge Katherine B. Forrest from Thomas B. Roberts dated Feb. 25, 2015. Document filed by Robert Doar, The New York City Human Rights Resources Administration.(Roberts, Thomas) (Entered: 02/25/2015)
220 ORDER granting 219 Letter Motion to Adjourn Conference. Conference adjourned to 3/11/15 at 11:30am. (Status Conference set for 3/11/2015 at 11:30 AM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 2/25/2015) (spo) (Entered: 02/25/2015)
221 ORDER: The parties shall submit their proposed settlement by March 20, 2015. The parties shall submit the proposed notice to the class and the memorandum in support by March 25, 2015. The fairness hearing shall take place on June 25, 2015 at 1:00 p.m. (Fairness Hearing set for 6/25/2015 at 01:00 PM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 3/11/2015) (kko) (Entered: 03/11/2015)
Minute Entry for proceedings held before Judge Katherine B. Forrest: Status Conference held on 3/11/2015. (jp) (Entered: 03/13/2015)
222 LETTER MOTION for Extension of Time to File Stipulation of Settlement addressed to Judge Katherine B. Forrest from John Gasior dated March 19, 2015. Document filed by Robert Doar, Sherry Hanan, Renee Moore, Kristin Proud, The New York City Human Rights Resources Administration, The New York State Office of Temporary and Disability Assistance, Alechea Toney−Dick, X.T..(Gasior, John) (Entered: 03/19/2015)

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 28 of 30

03/19/2015 03/30/2015 03/30/2015 03/31/2015
03/31/2015 03/31/2015 04/06/2015 04/06/2015 05/13/2015

223 ORDER granting 222 LETTER MOTION for Extension of Time to File Stipulation of Settlement addressed to Judge Katherine B. Forrest from John Gasior dated March 19, 2015. Document filed by Robert Doar, Sherry Hanan, Renee Moore, Kristin Proud, The New York City Human Rights Resources Administration, The New York State Office of Temporary and Disability Assistance, Alechea Toney−Dick, X.T. So ordered. (Signed by Judge Katherine B. Forrest on 3/19/2015) (rjm) (Entered: 03/20/2015)
224 JOINT MOTION to Approve CLASS ACTION SETTLEMENT AND CLASS NOTICE . Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit C, Ex. A, Part 1, # 5 Exhibit C, Ex. A, Part 2)(Mastro, Randy) (Entered: 03/30/2015)
225 JOINT MEMORANDUM OF LAW in Support re: 224 JOINT MOTION to Approve CLASS ACTION SETTLEMENT AND CLASS NOTICE . . Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Mastro, Randy) (Entered: 03/30/2015)
226 ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND CLASS NOTICE granting 224 Motion to Approve. IT IS ORDERED THAT: 1. Capitalized terms in this Order not defined herein shall have the meanings set forth in the Settlement Agreement. 2. The Court has jurisdiction over the subject matter of this Action and personal jurisdiction over the Plaintiffs, the subclasses, and the City and State Defendants. 3. The Court hereby grants preliminary approval of the terms and conditions contained in the Settlement Agreement filed concurrently herewith. The Court preliminarily finds that the terms of the Settlement Agreement appear to be within the range of possible approval, pursuant to Fed. R. Civ. P. 23(e) and applicable law. 4. A hearing pursuant to Fed. R. Civ. P. 23(e) shall be held for purposes of determining whether the proposed Settlement Agreement is fair, reasonable, and adequate, and should be approved by the Court (the "Fairness Hearing"). The Fairness Hearing shall take place before the Honorable Katherine B. Forrest, U.S. District Court, Southern District of New York, Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York 10007, on June 25, 2015, at 1:00 pm. The Fairness Hearing may be adjourned or continued from time to time without further notice. 5. The Court hereby approves the Class Notice, attached hereto as Exhibit B, for both subclasses as further set forth in this order. 12. The Court further orders that, pending further order of this Court, all proceedings in this Action except those contemplated herein and in the Settlement Agreement shall be stayed. (Signed by Judge Katherine B. Forrest on 3/31/2015) (lmb) (Entered: 03/31/2015)
Set/Reset Hearings: Fairness Hearing set for 6/25/2015 at 01:00 PM before Judge Katherine B. Forrest. (lmb) (Entered: 03/31/2015)
227 MEMO ENDORSEMENT on NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION CONCERNING THE DISASTER SUPPLEMENTAL NUTRITIONAL ASSISTANCE PROGRAM (D−SNAP) FOLLOWING SUPERSTORM SANDY. ENDORSEMENT: Proposed notice approved. (Signed by Judge Katherine B. Forrest on 3/31/2015) (lmb) (Entered: 03/31/2015)
228 NOTICE of Settlement of Proposed Class Action Under 28 U.S.C. 1715. Document filed by All Defendants. (Attachments: # 1 Exhibit Complaint, # 2 Exhibit 1st Amended Complaint, # 3 Exhibit 2nd Amended Complaint, # 4 Exhibit Order Granting Preliminary Approval of Class Action Settlement and Class Notice, # 5 Exhibit Class Notice, # 6 Exhibit Stipulation and Order of Settlement)(Roberts, Thomas) (Entered: 04/06/2015)
229 CERTIFICATE OF SERVICE of Notice of Proposed Class Action Settlement Under 28 U.S.C. 1715 served on Attorneys General of US, states and territories on April 6, 2015. Service was made by Mail. Document filed by Robert Doar, The New York City Human Rights Resources Administration. (Roberts, Thomas) (Entered: 04/06/2015)
230 LETTER addressed to Judge Katherine B. Forrest from Thomas B. Roberts dated May 13, 2015 re: delay in posting Class Notice. Document filed by Robert Doar, The New York City Human Rights Resources Administration.(Roberts, Thomas) (Entered: 05/13/2015)

Case: 1:12-cv-9162 As of: 11/05/2017 10:51 PM EST 29 of 30

06/11/2015 06/11/2015 06/11/2015 06/23/2015 06/24/2015 06/25/2015 07/07/2015
09/02/2015 09/03/2015 11/03/2015 11/04/2015 11/06/2015 11/25/2015

231 MOTION to Approve CLASS ACTION SETTLEMENT − UNOPPOSED. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. Return Date set for 6/25/2015 at 01:00 PM. (Attachments: # 1 Exhibit A)(Jois, Goutam) (Entered: 06/11/2015)
232 MEMORANDUM OF LAW in Support re: 231 MOTION to Approve CLASS ACTION SETTLEMENT − UNOPPOSED. . Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Jois, Goutam) (Entered: 06/11/2015)
233 DECLARATION of KENNETH STEPHENS in Support re: 231 MOTION to Approve CLASS ACTION SETTLEMENT − UNOPPOSED.. Document filed by Sherry Hanan, Renee Moore, Alechea Toney−Dick, X.T.. (Jois, Goutam) (Entered: 06/11/2015)
234 LETTER addressed to Judge Katherine B. Forrest from AAG John Gasior dated June 23, 2015 re: Fairness hearing conference call. Document filed by Kristin Proud, The New York State Office of Temporary and Disability Assistance.(Gasior, John) (Entered: 06/23/2015)
235 MEMO ENDORSEMENT on re: 234 Letter requesting Fairness hearing conference call, filed by Kristin Proud, The New York State Office of Temporary and Disability Assistance. ENDORSEMENT: SO ordered. (Signed by Judge Katherine B. Forrest on 6/24/2015) (spo) (Entered: 06/25/2015)
Minute Entry for proceedings held before Judge Katherine B. Forrest: Fairness Hearing held on 6/25/2015. (jp) (Entered: 06/25/2015)
236 JUDGMENT APPROVING CLASS ACTION SETTLEMENT AND DISMISSING ACTION: The Court has jurisdiction over the subject matter of this Action and personal jurisdiction over the Plaintiffs, the subclasses, and the City and State Defendants. 3. The Court hereby grants Plaintiffs' Unopposed Motion for Final Approval of Class Action Settlement and enters Final Judgment in the Action effective July 7, 2015. 4. The Settlement Agreement is approved as fair, reasonable, and adequate, and in the best interests of the members of the Class. The parties to the Settlement Agreement are directed to consummate the Settlement in accordance with its terms and provisions. 8. This Action is hereby dismissed with prejudice as against the City Defendants and State Defendants pursuant to Federal Rules of Civil Procedure 41(a)(1) and 23(e) and the terms of Section VI of the Settlement Agreement. Upon entry of this Order, the claims held by each settling Class Member against the City and State Defendants, are fully, finally, and forever relinquished and discharged pursuant to Section VI of the Settlement Agreement. (As further set forth in this Order.) (Signed by Judge Katherine B. Forrest on 7/7/2015) (ajs) (Entered: 07/07/2015)
237 LETTER MOTION for Extension of Time addressed to Judge Katherine B. Forrest from Kenneth Stephens dated September 2, 2015., FIRST LETTER MOTION for Extension of Time to File Motion for Attorneys' Fees addressed to Judge Katherine B. Forrest from Kenneth Stephens dated September 2, 2015. Document filed by Alechea Toney−Dick.(Stephens, Kenneth) (Entered: 09/02/2015)
238 ORDER granting 237 Letter Motion for Extension of Time; granting 237 Letter Motion for Extension of Time to File. So ordered. ( Motions due by 11/7/2015.) (Signed by Judge Katherine B. Forrest on 9/3/2015) (lmb) (Entered: 09/03/2015)
239 LETTER MOTION for Extension of Time for Plaintiffs to file motion for attorneys' fees addressed to Judge Katherine B. Forrest from John Gasior dated November 3, 2015. Document filed by Kristin Proud, The New York State Office of Temporary and Disability Assistance.(Gasior, John) (Entered: 11/03/2015)
240 ORDER granting 239 Letter Motion for Extension of Time. So ordered. Motions due by 11/30/2015. (Signed by Judge Katherine B. Forrest on 11/4/2015) (lmb) (Entered: 11/04/2015)
241 NOTICE OF APPEARANCE by Thomas B. Roberts on behalf of Robert Doar, The New York City Human Rights Resources Administration. (Roberts, Thomas) (Entered: 11/06/2015)
242 LETTER MOTION for Extension of Time to file motion for attorneys' fees addressed to Judge Katherine B. Forrest from John Gasior dated November 25, 2015. Document

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filed by Kristin Proud, The New York State Office of Temporary and Disability Assistance.(Gasior, John) (Entered: 11/25/2015)
243 ORDER granting 242 Letter Motion for Extension of Time. (I hope so!) So ordered. Motions due by 12/21/2015. (Signed by Judge Katherine B. Forrest on 11/30/2015) (lmb) (Entered: 11/30/2015)
244 STIPULATION AND ORDER OF SETTLEMENT OF ATTORNEY'S FEES, COSTS, AND DISBURSEMENTS: IT IS HEREBY STIPULATED AND ORDERED: 1. The State of New York, on behalf of State Defendants, shall pay the gross sum of one hundred eighty thousand dollars and no cents ($180,000.00) ("State Fee Payment") to Class Counsel, and Class Plaintiffs and Class Counsel agree to accept the State Fee Payment in full satisfaction of all claims against State Defendants for attorney's fees, costs, and disbursements that have been or will be incurred in connection with this action as further set forth in this order. 3. The City of New York, on behalf of City Defendants, shall pay the gross sum of two hundred seventy thousand dollars and no cents ($270,000.00) ("City Fee Payment") to Class Counsel, and Class Plaintiffs and Class Counsel agree to accept the City Fee Payment in full satisfaction of all claims against City Defendants for attorney's fees, costs, and disbursements that have been or will be incurred in connection with this action as further set forth in this order. 11. In consideration of the payment of the State Fee Payment and the City Fee Payment, Class Plaintiffs and Class Counsel, the Legal Aid Society and Gibson Dunn & Crutcher, LLP, on their own behalf and on behalf of their respective heirs, executors, administrators, representatives, attorneys, successors, and assigns of each of themselves and on behalf of future Class Plaintiffs hereby jointly and severally release and forever discharge State Defendants, the State of New York, City Defendants, and the City of New York, including without limitation their past, present and future officials, employees, departments, agencies, representatives, directors and agents, their successors and assigns and their respective heirs, executors, administrators, personal representatives, and transferees, and each of them from any and all claims for past, present, or future attorney's fees, costs, and disbursements arising from or in connection with the above−captioned action as further set forth in this order. (Signed by Judge Katherine B. Forrest on 12/28/2015) (lmb) (Entered: 12/28/2015)
Terminate Transcript Deadlines (lmb) (Entered: 12/28/2015)
245 CONSENT LETTER addressed to Judge Katherine B. Forrest from Thomas B. Roberts dated May 9, 2016 re: Notification to the Court pursuant to Paragraph 10 of the judgment that the City Defendants have convened a Disability Advisory Community Panel. Document filed by Robert Doar, The New York City Human Rights Resources Administration.(Roberts, Thomas) (Entered: 05/09/2016)
246 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − JOINT MOTION to Approve termination of the Court's jurisdiction over the settlement as of August 6, 2016. Document filed by Robert Doar, The New York City Human Rights Resources Administration.(Roberts, Thomas) Modified on 8/18/2016 (ldi). (Entered: 08/08/2016)
247 ORDER granting 246 Motion to Approve termination of the Court's jurisdiction over the settlement as of August 6, 2016. SO ORDERED. (Signed by Judge Katherine B. Forrest on 8/9/2016) (mro) (Entered: 08/10/2016)