Case 3:12-cv-00790-HTW-LGI Document 92 Filed 02/21/24 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
(Northern Division)

UNITED STATES OF AMERICA, )

)
and the STATE OF MISSISSIPPI, )
)
Plaintiffs, )
) Case No. 3:12-cv-790-HTW-LGI
) (Clean Water Act Case)
v. )
)
)
THE CITY OF JACKSON, MISSISSIPPI, )
)
Defendant. )
)
UNITED STATES OF AMERICA, )
)
Plaintiff, )
) Case No. 3:22-cv-00686-HTW-LGI
) (Safe Drinking Water Act Case)
v. )
)
)
)
THE CITY OF JACKSON, MISSISSIPPI, )
)
Defendant. )
)

UNITED STATES’ MEMORANDUM IN OPPOSITION TO MOTION FOR ORDER TO

RELEASE SNAP PROGRAM RECIPIENTS LIST

Plaintiff the United States of America, on behalf of the United States Department of

Agriculture (“USDA”), opposes the motion filed by the interim third-party manager (“ITPM”) to

require the Mississippi Department of Human Services (“MDHS”) to share information about

the identity of recipients of the Supplemental Nutrition Assistance Program (“SNAP”). See Dkt.
 Case 3:12-cv-00790-HTW-LGI Document 92 Filed 02/21/24 Page 2 of 12

No. 87 (hereinafter “Motion”). While the Motion is directed at MDHS, 1 the United States

enforces federal statutory and regulatory requirements that strictly protect the privacy of SNAP

recipients by prohibiting a state from using or disclosing SNAP information except in narrow

circumstances not present here.

The United States acknowledges the good intentions of the ITPM in seeking the

information to enact a water/sewer rate classification that benefits SNAP recipients. 2 However,

the City functions that the ITPM is performing do not satisfy the “federal assistance program”

exception to the privacy protections that apply to the release of SNAP information. Furthermore,

the Motion’s reliance on discovery rulings fails to recognize that the ITPM is not conducting

discovery. Even under discovery standards, a blanket, large-scale release of SNAP information

would fall outside the scope of allowable discovery and needlessly intrude on the privacy of

SNAP recipients, who have not consented to disclosure and who might not even be JXN Water

accountholders or bill payers, for example, if they rent from a landlord. Even more problematic

is that a blanket release of SNAP recipients could include individuals residing in group homes,

1
The filing of a motion directed at MDHS is procedurally questionable. MDHS is neither a
party in the cases nor a party to the Interim Stipulated Order that appointed the ITPM and does
not receive automatic notifications of filings on this Court’s docket. See Motion at 2 (incorrectly
stating that MDHS stipulated to the Interim Stipulated Order). A different agency, the
Mississippi State Department of Health (“MSDH”), stipulated to the Interim Stipulated Order.
Safe Drinking Water Act Case, Dkt. No. 6 at 5 (defining “Parties”). In addition, filing the
Motion on the docket does not constitute proper service and notice to MDHS. To the extent the
Motion is treated like a subpoena, the requirements of a subpoena are not met. See, e.g., Fed. R.
Civ. P. 45(b) (service requirements); Abraham, Inc. v. United States, No. 2:18-cv-1306, 2020
U.S. Dist. LEXIS 104358, at *7-*8 (S.D. Ohio June 15, 2020) (granting motion to quash
subpoena because of requesting party’s “casual disregard of Rule 45’s requirements” for proper
service and a reasonable amount of time for compliance).
2
As we understand the rate proposal, JXN Water households that are also SNAP recipients
would be eligible for a water/sewer availability charge as low as $10 per month. See JXN Water,
“Your Water Bill Is Changing,” https://jxnwater.com/wp-content/uploads/2024/01/
JXNwater_NewspaperAd_NewRates_20x10_03.pdf (accessed Feb. 19, 2024).
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shelters for battered women and children, residents of homeless shelters, and residents of

drug/alcohol treatment facilities—some of the most vulnerable households participating in

SNAP. See 7 U.S.C. 2012(m)(5). Had the United States been consulted about this Motion prior

to filing, 3 it may have been able to work with the ITPM on an alternative that comports with

federal law. After the Motion was filed, the United States has discussed alternative proposals

that would comport with federal law and remains willing to work with MDHS and the ITPM on

such ideas.

I. FACTUAL AND LEGAL BACKGROUND

SNAP is a federal program authorized by the federal Food and Nutrition Act of 2008

(formerly the Food Stamp Act), 7 U.S.C. § 2011 et seq. (the “Act”). At the federal level,

USDA’s Food and Nutrition Service administers SNAP. In Mississippi, MDHS has the

delegated authority to administer SNAP. The Act and its implementing regulations prohibit

MDHS from disclosing SNAP recipients to a third party (e.g., the ITPM) except in specific

enumerated circumstances. See 7 U.S.C. § 2020(e)(8); 7 C.F.R. § 272.1(c). Specifically, the Act

and the regulations require that MDHS safeguard information obtained from SNAP applicant or

recipient households to prohibit the use or disclosure of information except to persons directly

connected with the administration or enforcement of:

(1) SNAP,

(2) other federal assistance programs,

(3) federally-assisted state programs providing assistance on a means-tested basis to low-

income individuals, or

3
Local Rule 7(b)(10) requires non-dispositive motions to advise whether there is opposition to
the motion, indicating that the movant must confer with the parties and relevant entities before
filing the motion.
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(4) general assistance programs which are subject to joint processing requirements.

There is no exception allowing disclosure of SNAP household information for judicial or

administrative proceedings, as is permitted with other confidential or sensitive information. Cf. 7

C.F.R. § 246.26(i) (WIC provision that specifically allows disclosure pursuant to subpoena or

search warrant); 45 C.F.R. § 164.512(e) (HIPAA exception that allows for disclosure of

protected health information in judicial and administrative proceedings).

The Food and Nutrition Service routinely reviews requests from state agencies to waive

the SNAP privacy requirements and determines whether an exception is met. The Food and

Nutrition Service does not approve regulatory waiver requests when “(i) [t]he waiver would be

inconsistent with the provisions of the Act; or (ii) [t]he waiver would result in material

impairment of any statutory or regulatory rights of participants or potential participants.” 7

C.F.R. § 272.3(c)(2). The Food and Nutrition Service cannot approve statutory waiver requests

unless a proposed research or demonstration project is “consistent with the goal of the

supplemental nutrition assistance program of providing food assistance to raise levels of

nutrition among low-income individuals.” 7 U.S.C. § 2026(b)(1)(B)(i).

As the Motion acknowledges, MDHS, as the agency with delegated authority, is the

agency that possesses the requested SNAP information pursuant to the responsibilities—

including the privacy protections—set forth in Section 11 of the Act. See 7 U.S.C. § 2020(a)(1),

(a)(3), and (d)-(e) (placing responsibility on the state agency for administering SNAP, keeping

records, and submitting a plan of operation that includes safeguards against the prohibited use or

disclosure of information obtained from applicant households); 18 Miss. Code R. § 14-1.2

(setting forth MDHS’s delegated responsibilities of administering SNAP, including certifying

applicant households). MDHS’s safeguards to protect confidential information include

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prohibiting agency employees from disclosing the names and address or lists of SNAP applicants

and recipients, 18 Miss. Code R. § 14-1.11(B)(1), and requiring the written authorization of an

adult household member or authorized representative before specific information may be

disclosed to other persons, 18 Miss. Code R. § 14-1.11(C). MDHS lacks authority to waive the

Act’s statutory and regulatory requirements. See 7 U.S.C. § 2026(b)(1)(A) (authorizing the

Secretary of Agriculture to waive certain requirements of the Act); 7 C.F.R. § 272.3(c)(1)

(authorizing specific federal officers to approve waivers).

II. ARGUMENT

The plain language of the Food and Nutrition Act and its implementing regulations

strictly prohibit MDHS’s disclosure of SNAP information to a third party such as the ITPM. See

7 U.S.C. § 2020(e)(8); 7 C.F.R. § 272.1(c). Neither the Food and Nutrition Service nor MDHS

are authorized to waive the prohibition to allow disclosure to the ITPM. See 7 U.S.C.

§ 2026(b)(1)(B)(i); 7 C.F.R. § 272.3(c)(1) and (2). In apparent recognition of this fact, the

Motion attempts to establish an exception on two grounds: (1) the “federal assistance programs”

exception and (2) citation to discovery rulings in which courts authorized disclosure. However,

neither basis is legally sufficient. The ITPM may pursue other avenues of enrolling SNAP

recipients for the discounted SNAP rate that do not require overriding federal privacy protections

and compelling the overly broad release of private information of SNAP recipients.

A. The ITPM’s role and intentions do not transform his SNAP rate classification into
a “federal assistance program.”

The ITPM argues that disclosure of the SNAP information is authorized under Section

11(e)(8)(A)(i) of the Act, 7 U.S.C. § 2020(e)(8)(A)(i), because his implementation of the SNAP

rate classification, as an officer of a federal court, is “the substantive and legal equivalent of a

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‘federal assistance’ program.” Motion at 3-4 (also referring to exception for “federally-assisted

State programs”). This is incorrect.

Although the ITPM’s authority arises from an order of a federal court, the ITPM is not

carrying out a federal (or federally-assisted state) program but rather the City of Jackson’s

duties. See Safe Drinking Water Act Case, Dkt. No. 6 ¶ 6 (stating the ITPM “assumes all of the

responsibilities, functions, duties, powers, and authority of the City insofar as they affect the

City’s compliance with this Stipulated Order . . . .”); Clean Water Act Case, Dkt. No. 70 ¶ 5

(same). Assuming City functions under a federal order does not transform the functions into a

federal (or federally-assisted state) program. In stark contrast, examples of programs that do

constitute “federal assistance programs” or “federally-assisted state programs” under the Act are

Supplemental Security Income (SSI), Special Supplemental Nutrition Program for Women,

Infants, and Children (WIC), Temporary Assistance for Needy Families (TANF), the National

School Lunch Program (NSLP), Medicaid, and Food Distribution Program on Indian

Reservations (FDPIR).

Although the ITPM intends to use the SNAP information to provide assistance to needy

households, the Act and its implementing regulations make no exception for City functions that

may assist the same persons as the Act. Thus, the SNAP rate classification does not satisfy the

exception under Section 11(e)(8)(A)(i).

B. Discovery rulings allowing disclosure do not support the overly broad release of
SNAP information here, where the ITPM is not engaged in discovery, the recipients
are not litigants, and the disclosure would not meet discovery standards.

The Motion cites instances when courts have allowed the disclosure of SNAP

information in the narrow context of discovery. See Motion at 5-6. But these cases do not

authorize the Court to compel disclosure here. First, the ITPM is not engaged in discovery and

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the requested SNAP information is not evidence in either the Safe Drinking Water Act Case or

Clean Water Act Case. Indeed, engaging in discovery would fall outside the boundaries of the

ITPM’s role. Thus, applying the Act and regulations as written does not amount to

“suppress[ing] otherwise competent evidence.” Motion at 5 (quoting Baldridge v. Shapiro, 455

U.S. 345, 360 (1982)) (external quotations omitted).

Second, even in the cases cited in the Motion that allowed disclosure of confidential

SNAP information in discovery, the information requested consisted of a litigant’s own SNAP

information and/or met the standards for discovery under the Federal Rules of Civil Procedure,

such as being relevant to a party’s claims or defenses or being in aid of a judgment. The Motion

does not clear these hurdles.

Two of the cited cases allowed litigants to obtain their own confidential information in

discovery. Arguably, the litigants consented to disclosure and would not be harmed by the

intrusion on their privacy. The information was also in aid of a judgment or relevant to the

claims. In In re Nassau County Strip Search Case—the primary case the Motion relies upon, see

Motion at 5-6—the court ordered the government to disclose to the plaintiff class the confidential

addresses of SNAP recipients who matched the names of unlocated class members so that the

class members could be notified about the judgment. No. 99-CV-2844, 2017 WL 3189870, at *8

& n.7, 2017 U.S. Dist. LEXIS 117033, at *23 (E.D.N.Y. July 26, 2017). In ordering disclosure,

the court emphasized that the disclosure was limited to the information of unlocated class

members, who “are, in a sense, parties to this litigation,” and suggested that the outcome may

have been different had the information belonged to “strangers to this lawsuit.” Id. at *8 & n.7.

Moreover, the purpose of the disclosure was “solely to notify” the unlocated class members and

thus in aid of a judgment. Id. at *8; see also id. at *5 (citing Fed. R. Civ. P. 26(b)(1) and

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69(a)(2) for the scope of allowable discovery). In Hedgepeth v. Nash County, the court ruled

that the government could not withhold from the plaintiff relevant confidential information that

had been provided by the plaintiff herself. No. 4:21-CV-144-FL, 2023 WL 2711545, at *5, 2023

U.S. Dist. LEXIS 58295, at *15-*16 (E.D.N.C. Mar. 28, 2023).

In contrast, the SNAP recipients in Jackson are not litigants in the Safe Drinking Water

Act Case or Clean Water Act Case. Unlike litigants seeking confidential information to further

their claim, defense, or a judgment, the SNAP recipients here have not consented to disclosure of

any kind, much less to a third party. Moreover, because not every SNAP recipient is a JXN

Water accountholder, granting the Motion would compel MDHS to disclose the private

information of SNAP recipients who are unlikely to have ever consented and will receive no

benefit from the forced disclosure. 4

The Motion cited two other cases that allowed litigants to obtain confidential information

about Electronic Benefits Transfer (“EBT”) card transactions they had engaged in as retailers.

While the information would disclose identifying information about the SNAP recipients

involved in the transactions, the information was relevant to the litigants’ claims appealing

SNAP enforcement actions that resulted in the government disqualifying the litigants from

participating as authorized retailers in SNAP. See Hassan v. United States, No. C05-1066C,

2006 WL 681038, at *2, 2006 U.S. Dist. LEXIS 14774, at *5-*7 (W.D. Wash. Mar. 15, 2006)

(ordering government to disclose to plaintiffs the confidential transactions that formed the basis

for disqualifying them as authorized retailers); Abraham, Inc. v. United States, No. 2:18-cv-1306,

2020 U.S. Dist. LEXIS 104358, at *9 (S.D. Ohio June 15, 2020) (ruling that the confidential

4
As noted above, the blanket release of this information could disclose the identity of SNAP
receipts who are renters to their landlords, as well as the information of other vulnerable
recipients. See above at pp. 2-3.
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information was “concededly relevant”). 5 The argument for disclosure in these cases was

stronger because they involved appeals of SNAP enforcement actions and was limited to the

identifying information of households which were involved in transactions that led to the

enforcement action, and thus align more closely with the statutory and regulatory exception

allowing disclosure for the administration and enforcement of SNAP. See 7 U.S.C.

§ 2020(e)(8)(A); 7 C.F.R. § 272.1(c)(1)(i). In fact, the Food and Nutrition Service in Abraham

stipulated to allowing disclosure—under a protective order—of confidential identifying

information of the SNAP recipients involved in the relevant EBT transactions. Abraham, 2020

U.S. Dist. LEXIS 104358, at *4. However, as established above, the ITPM’s request does not

meet a statutory or regulatory exception.

Under the logic of all the cases cited by the Motion, the Motion must be denied. The

confidential information of SNAP recipients, as non-litigants, is not discoverable because it

exceeds the scope of discovery. If the Motion is equivalent to a discovery request (which the

United States does not concede), then it fails because the SNAP information is not relevant to

any party’s claims or defenses and is not in aid of a judgment. See Fed. R. Civ. P. 26(b)(1) and

69(a)(2). The Motion is also overly broad and burdensome. See Fed. R. Civ. P. 26(b)(1)

(describing scope of discovery as including considerations of proportionality, burden, and

expense). If granted, the Motion would compel MDHS, a non-party, to bear the burden and

expense of compiling and securely transmitting the information to the ITPM each calendar

quarter indefinitely. Moreover, once information that has been entrusted to MDHS is in the

hands of a third party, MDHS loses the ability to secure the data against a data breach and

enforce its safeguards against improper disclosure. This is a significant concern because the

5
No Westlaw citation is available for Abraham.
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USDA does not necessarily have recourse to address a data breach against a third party.

Currently, the USDA may approve how MDHS safeguards SNAP information because, each

year, MDHS submits a plan of operation that outlines details of program administration and

agrees to abide by statutory and regulatory requirements. See 7 U.S.C. 2020(d) (requiring each

State desiring to participate in SNAP to “submit for approval a plan of operation specifying the

manner in which such program will be conducted within the State in every political

subdivision”); 7 C.F.R. 272.2 (outlining the purpose and content of a State plan of operation). If

MDHS were to improperly handle SNAP information, Mississippi could be disqualified from

administering SNAP and receiving SNAP funding. See 7 U.S.C. 2020(g) (providing that if a

State violate the Act, its corresponding regulations, or the state plan of operations, the Secretary

shall proceed to withhold funds from the State); 7 C.F.R. 276.4 (outlining the suspension and

disallowance of funds procedures which are triggered when a State “fails to comply with the

SNAP requirements established by the Food and Nutrition Act of 2008, the regulations issued

pursuant to the Act, or the FNS-approved State Plan of Operation”). However, if a third party is

lax with safeguards or suffers a data breach, the USDA has little recourse against the third

party—regardless of whether a protective order is in place.

C. The ITPM may pursue less intrusive ways of identifying low-income

accountholders.

There are feasible methods for the ITPM to achieve the same objectives without

overriding SNAP privacy requirements:

(1) JXN Water could directly obtain from accountholders their SNAP status by including

in each water/sewer bill a means for accountholders to provide their consent for MDHS to

confirm their SNAP status and/or to sign an attestation that they are SNAP recipients. To

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maximize reach, JXN Water could provide multiple avenues of providing consent/attesting to

SNAP status (e.g., website, mail-in form, in-person); or

(2) JXN Water could pay MDHS to mail to SNAP recipients vouchers or digital codes

that recipients can provide to JXN Water when paying their bill, thereby verifying they are

SNAP recipients.

These options are lawful and narrowly tailored to ensure that only consenting

accountholders will have their private SNAP information disclosed to the ITPM. Given the

substantial benefit to SNAP recipients—a monthly 75% discount compared to the non-SNAP

residential fee—the United States is confident that the ITPM will be able to incentivize eligible

accountholders to sign up. To be sure, the alternative options may require more effort and

outreach by the ITPM and a small investment of time by accountholders. However, the desire

for expediency does not outweigh the need to proceed lawfully and protect the privacy of SNAP

recipients.

III. CONCLUSION

For the reasons above, the United States respectfully requests that the Court deny the

Motion.

Respectfully submitted,

FOR THE UNITED STATES OF AMERICA:

TODD KIM
Assistant Attorney General
Environment and Natural Resources Division
U.S. Department of Justice

Dated: Feb. 21, 2024 KARL FINGERHOOD Digitally signed by KARL FINGERHOOD
Date: 2024.02.21 15:34:24 -05'00'

KARL FINGERHOOD (PA Bar No. 63260)

ANGELA MO (CA Bar No. 262113)
Attorneys
Environmental Enforcement Section

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Environment and Natural Resources Division

U.S. Department of Justice
P.O. Box 7611
Washington, D.C. 20044-7611
Tel: (202) 514-7519
Fax: (202) 616-2427
Email: Karl.Fingerhood@usdoj.gov
Angela.Mo@usdoj.gov

TODD W. GEE
United States Attorney for the
Southern District of Mississippi

Dated: Feb. 21, 2024 /s/ Angela Givens Williams (with permission by KJF)
ANGELA GIVENS WILLIAMS (MS Bar No. 102469)
Chief, Civil Division
Assistant United States Attorney
United States Attorney’s Office
501 East Court Street, Suite 4.430
Jackson, Mississippi 39201
Tel: (601) 965-4480

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