20-4015-cv McCluskey v. Spitzberg

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 27th day of August, two thousand twenty-one. 4 5 PRESENT: 6 REENA RAGGI, 7 GERARD E. LYNCH, 8 MICHAEL H. PARK, 9 Circuit Judges. 10 _____________________________________ 11 12 PETER McCLUSKEY, 13 14 Plaintiff-Appellant, 15 16 v. 20-4015 17 18 SAMUEL SPITZBERG, Director of Temporary 19 and Disability Assistance, in his individual 20 capacity, FRANK SEMINERO, Supervising 21 Hearing Officer, Office of Temporary and 22 Disability Assistance, in his individual capacity, 23 JAMES RYAN, III, Supervising Hearing 24 Officer, Office of Temporary and Disability 25 Assistance, in his individual capacity, RICHARD 26 LEVCHUCK, Supervising Hearing Officer, 27 Office of Temporary and Disability Assistance, 28 in his individual capacity, MS. LEE, Hearing 29 Officer, Office of Temporary and Disability 30 Assistance, in her individual capacity, ROBERT 31 MORELLI, Assistant Attorney General, Office 32 of State of New York Attorney General, in his 33 individual capacity, NEW YORK STATE 34 OFFICE OF TEMPORARY AND DISABILITY 35 ASSISTANCE, 1 2 Defendants-Appellees. 3 _____________________________________ 4 5 FOR PLAINTIFF-APPELLANT: Peter McCluskey, pro se, Lynbrook, NY. 6 7 FOR DEFENDANTS-APPELLEES: Barbara D. Underwood, Solicitor General, 8 Judith N. Vale, Senior Assistant Solicitor 9 General, David Lawrence III, Assistant 10 Solicitor General, for Letitia James, Attorney 11 General of the State of New York, New York, 12 NY. 13 Appeal from a November 16, 2020 order of the United States District Court for the Eastern

14 District of New York (Roslynn R. Mauskopf, J.).

15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

16 DECREED that the order of the district court is AFFIRMED.

17 Appellant Peter McCluskey, pro se, sued the New York State Office of Temporary and

18 Disability Assistance (“OTDA”) and several of its employees under

, alleging

19 that state regulations for the Supplemental Nutrition Assistance Program (“SNAP”) violated

20 federal law. He asserted that he was denied the ability to submit evidence of anticipated medical

21 expenses, resulting in the reduction of his SNAP benefits. McCluskey moved for a preliminary

22 injunction to amend the applicable state regulation to comply with federal law and the SNAP

23 application form to inquire about anticipated medical expenses. The district court denied the

24 motion, reasoning that McCluskey was unlikely to succeed on the merits and had not shown

25 irreparable harm. We assume the parties’ familiarity with the underlying facts, the procedural

26 history of the case, and the issues on appeal.

27 We review the district court’s decision on a preliminary injunction for abuse of discretion.

28 Lynch v. City of New York,

(2d Cir. 2009). “A district court has abused its

2 1 discretion if it has (1) ‘based its ruling on an erroneous view of the law,’ (2) made a ‘clearly

2 erroneous assessment of the evidence,’ or (3) ‘rendered a decision that cannot be located within

3 the range of permissible decisions.’”

(quoting Sims v. Blot,

(2d Cir. 2008)).

4 A party seeking a preliminary injunction against governmental action must demonstrate

5 (1) that it is likely to suffer irreparable harm absent an injunction and (2) a likelihood of succeeding

6 on the merits. Trump v. Deutsche Bank AG,

, 635–37 (2d Cir. 2019), vacated and

7 remanded on other grounds, Trump v. Mazars USA, LLP,

(2020).

8 The district court did not abuse its discretion by concluding that McCluskey failed to meet

9 the standard for a preliminary injunction here. McCluskey first argues that the state regulation

10 concerning deductions of anticipated medical expenses from the income taken into account in

11 calculating eligibility for SNAP benefits impermissibly deviates from the federal statute. But, as

12 the district court found, the OTDA regulation mirrors the language of the federal law concerning

13 SNAP medical expense deductions. The federal law states that “[a] household containing an

14 elderly or disabled member shall be entitled, with respect to expenses other than expenses paid on

15 behalf of the household by a third party, to an excess medical expense deduction for the portion of

16 the actual costs of allowable medical expenses, incurred by the elderly or disabled member,

17 exclusive of special diets, that exceeds $35 per month.”

(e)(5)(A). Similarly,

18 New York’s regulation defines medical expense deductions as “[d]eductions consisting of that

19 portion of medical expenses, excluding special diets, which are in excess of $35 per month and

20 incurred by a household member who meets the definition of elderly (age 60 and older) or

21 disabled.”

(c). Thus, the district court correctly

22 concluded that the state regulation does not impermissibly deviate from the federal statute.

23 McCluskey next argues that the computation methods between the state regulation and

3 1 federal statute are inconsistent. The federal statute requires that the method “minimize the

2 burden” for the eligible person, “rely on reasonable estimates” of recurring medical expenses after

3 the expenses are initially verified, and “not require further reporting or verification of a change in

4 medical expenses if such a change has been anticipated for the certification period.” 7 U.S.C.

5 § 2014(e)(5)(B)(ii). The state regulation requires that any excess medical deduction over $35 be

6 subtracted from the household’s monthly income. N.Y. Comp. Codes R. & Regs. tit. 18,

7 § 387.15(a)(4). While the state regulation and SNAP application form do not specifically discuss

8 consideration of anticipated medical expenses, federal law does not mandate that such language

9 be included. Indeed, the application form does ask if anyone living with the applicant is elderly

10 or disabled, whether such person has medical bills, the amount, what they are for, and who is

11 responsible for payment. See N.Y. State Office of Temp. & Disability Assistance, Supplemental

12 Nutrition Assistance Program (SNAP) Application/Recertification at 4 (Feb. 2018),

13 https://otda.ny.gov/programs/applications/4826.pdf. The state’s application process also

14 includes an interview at which an applicant could discuss anticipated medical expenses. See id.

15 at cover page. Moreover, any claim that OTDA does not allow for such deductions is belied by

16 the OTDA Source Book, which provides that “[h]ouseholds eligible for the excess medical

17 deduction must be allowed at certification to give a reasonable estimate of the medical expenses

18 they expect to incur during the course of the certification period.” N.Y. State Office of Temp. &

19 Disability Assistance, Supplemental Nutrition Assistance Program (SNAP) Source Book at 249

20 (July 2011), https://otda.ny.gov/programs/snap/SNAPSB.pdf. The district court thus did not err

21 in concluding that McCluskey had offered insufficient evidence of an inconsistency between the

22 state and federal computation methods to demonstrate a likelihood of success on the merits.

23 McCluskey contends that the district court erred in concluding that, at this stage of

4 1 litigation, he has offered no evidence suggesting that New York calculates SNAP benefits solely

2 on the basis of information provided on the application form. But this argument is meritless.

3 McCluskey is correct that the SNAP application requires the applicant to affirm his understanding

4 that he must report medical expenses to obtain a deduction for those expenses, and that failing to

5 report or verify those expenses would result in an applicant not receiving the deduction. N.Y.

6 State Office of Temp. & Disability Assistance, Supplemental Nutrition Assistance Program

7 (SNAP) Application/Recertification at 7. But the application form also states that expenses can

8 be reported and verified at any time. Id. Therefore, the district court did not err in concluding

9 that the evidence that SNAP benefits could be based on information other than what was stated in

10 in the application form precluded him from showing, on the present state of the record, that he

11 would likely prevail on his claims.

12 Because McCluskey’s failure to establish a likelihood of success on the merits suffices to

13 dispose of this appeal, we need not consider the district court’s additional conclusion that he had

14 not established irreparable harm. We have considered all of McCluskey’s remaining arguments

15 and find them to be without merit. Accordingly, we AFFIRM the order of the district court

16 denying a preliminary injunction.

17 18 FOR THE COURT: 19 Catherine O=Hagan Wolfe, Clerk of Court 20

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