7 U.S.C. § 2023

Current through P.L. 118-107 (published on www.congress.gov on 11/21/2024)

Section 2023 - Administrative and judicial review; restoration of rights

(a)

(1) Whenever an application of a retail food store or wholesale food concern to participate in the supplemental nutrition assistance program is denied pursuant to section 2018 of this title, or a retail food store or wholesale food concern is disqualified or subjected to a civil money penalty under the provisions of section 2021 of this title, or a retail food store or wholesale food concern forfeits a bond under section 2021(d) of this title, or all or part of any claim of a retail food store or wholesale food concern is denied under the provisions of section 2022 of this title, or a claim against a State agency is stated pursuant to the provisions of section 2022 of this title, notice of such administrative action shall be issued to the retail food store, wholesale food concern, or State agency involved.

(2) DELIVERY OF NOTICES.-A notice under paragraph (1) shall be delivered by any form of delivery that the Secretary determines will provide evidence of the delivery.

(3) If such store, concern, or State agency is aggrieved by such action, it may, in accordance with regulations promulgated under this chapter, within ten days of the date of delivery of such notice, file a written request for an opportunity to submit information in support of its position to such person or persons as the regulations may designate.

(4) If such a request is not made or if such store, concern, or State agency fails to submit information in support of its position after filing a request, the administrative determination shall be final.

(5) If such request is made by such store, concern, or State agency, such information as may be submitted by the store, concern, or State agency, as well as such other information as may be available, shall be reviewed by the person or persons designated by the Secretary, who shall, subject to the right of judicial review hereinafter provided, make a determination which shall be final and which shall take effect thirty days after the date of the delivery or service of such final notice of determination.

(6) Determinations regarding claims made pursuant to section 2025(c) of this title (including determinations as to whether there is good cause for not imposing all or a portion of the penalty) shall be made on the record after opportunity for an agency hearing in accordance with section¹ 556 and 557 of title 5 in which one or more administrative law judges appointed pursuant to section 3105 of such title shall preside over the taking of evidence.

(7) Such judges shall have authority to issue and enforce subpoenas in the manner prescribed in sections² 499m(c) and (d) of this title and to appoint expert witnesses under the provisions of Rule 706 of the Federal Rules of Evidence.

(8) The Secretary may not limit the authority of such judges presiding over determinations regarding claims made pursuant to section 2025(c) of this title.

(9) The Secretary shall provide a summary procedure for determinations regarding claims made pursuant to section 2025(c) of this title in amounts less than $50,000.

(10) Such summary procedure need not include an oral hearing.

(11) On a petition by the State agency or sua sponte, the Secretary may permit the full administrative review procedure to be used in lieu of such summary review procedure for a claim of less than $50,000.

(12) Subject to the right of judicial review hereinafter provided, a determination made by an administrative law judge regarding a claim made pursuant to section 2025(c) of this title shall be final and shall take effect thirty days after the date of the delivery or service of final notice of such determination.

(13) If the store, concern, or State agency feels aggrieved by such final determination, it may obtain judicial review thereof by filing a complaint against the United States in the United States court for the district in which it resides or is engaged in business, or, in the case of a retail food store or wholesale food concern, in any court of record of the State having competent jurisdiction, within thirty days after the date of delivery or service of the final notice of determination upon it, requesting the court to set aside such determination.

(14) The copy of the summons and complaint required to be delivered to the official or agency whose order is being attacked shall be sent to the Secretary or such person or persons as the Secretary may designate to receive service of process.

(15) The suit in the United States district court or State court shall be a trial de novo by the court in which the court shall determine the validity of the questioned administrative action in issue, except that judicial review of determinations regarding claims made pursuant to section 2025(c) of this title shall be a review on the administrative record.

(16) If the court determines that such administrative action is invalid, it shall enter such judgment or order as it determines is in accordance with the law and the evidence.

(17) During the pendency of such judicial review, or any appeal therefrom, the administrative action under review shall be and remain in full force and effect, unless on application to the court on not less than ten days' notice, and after hearing thereon and a consideration by the court of the applicant's likelihood of prevailing on the merits and of irreparable injury, the court temporarily stays such administrative action pending disposition of such trial or appeal.

(18) SUSPENSION OF STORES PENDING REVIEW.-Notwithstanding any other provision of this subsection, any permanent disqualification of a retail food store or wholesale food concern under paragraph (3) or (4) of section 2021(b) of this title shall be effective from the date of receipt of the notice of disqualification. If the disqualification is reversed through administrative or judicial review, the Secretary shall not be liable for the value of any sales lost during the disqualification period.

(b) In any judicial action arising under this chapter, any allotments found to have been wrongfully withheld shall be restored only for periods of not more than one year prior to the date of the commencement of such action, or in the case of an action seeking review of a final State agency determination, not more than one year prior to the date of the filing of a request with the State for the restoration of such allotments or, in either case, not more than one year prior to the date the State agency is notified or otherwise discovers the possible loss to a household.

¹So in original. Probably should be "sections".

²So in original. Probably should be "section".

7 U.S.C. § 2023

Pub. L. 88-525, §14, Aug. 31, 1964, 78 Stat. 708; Pub. L. 91-671, §7, Jan. 11, 1971, 84 Stat. 2052; Pub. L. 92-603, title IV, §411(f), Oct. 30, 1972, 86 Stat. 1492; Pub. L. 95-113, title XIII, §1301, Sept. 29, 1977, 91 Stat. 974; Pub. L. 97-98, title XIII, §1320(b), Dec. 22, 1981, 95 Stat. 1286; Pub. L. 97-253, title I, §176(b), Sept. 8, 1982, 96 Stat. 781; Pub. L. 99-198, title XV, §1536, Dec. 23, 1985, 99 Stat. 1585; Pub. L. 100-435, title VI, §603, Sept. 19, 1988, 102 Stat. 1674; Pub. L. 103-66, title XIII, §13951(b), Aug. 10, 1993, 107 Stat. 678; Pub. L. 104-193, title VIII, §845, Aug. 22, 1996, 110 Stat. 2333; Pub. L. 107-171, title IV, §4117(a), May 13, 2002, 116 Stat. 316; Pub. L. 110-234, title IV, §§4001(b), May 22, 2008, 4002, May 22, 2008, 122 Stat. 1092, 1094; Pub. L. 110-246, §4(a), title IV, §§4001(b), 4002(a)(7), June 18, 2008, 122 Stat. 1664, 1853, 1855.

EDITORIAL NOTES

REFERENCES IN TEXTThe Federal Rules of Evidence, referred to in subsec. (a)(7), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.

CODIFICATION Pub. L. 110-234 and Pub. L. 110-246 made identical amendments to this section. The amendments by Pub. L. 110-234 were repealed by section 4(a) of Pub. L. 110-246.

AMENDMENTS2008-Subsec. (a)(1). Pub. L. 110-246, §4001(b), substituted "supplemental nutrition assistance program" for "food stamp program".Subsec. (b). Pub. L. 110-246, §4002(a)(7), substituted "any allotments" for "any food stamp allotments".2002-Subsec. (a)(2). Pub. L. 107-171 added heading and text of par. (2) and struck out former par. (2) which read as follows: "Such notice shall be delivered by certified mail or personal service."1996-Subsec. (a). Pub. L. 104-193 designated first through seventeenth sentences as pars. (1) to (17), respectively, and added par. (18).1993-Subsec. (a). Pub. L. 103-66 inserted "(including determinations as to whether there is good cause for not imposing all or a portion of the penalty)" after "Determinations regarding claims made pursuant to section 2025(c) of this title" in sixth sentence and struck out at end "Notwithstanding the administrative or judicial review procedures set forth in this subsection, determinations by the Secretary concerning whether a State agency had good cause for its failure to meet error rate tolerance levels established under section 2025(c) of this title are final." 1988-Subsec. (a). Pub. L. 100-435 inserted provisions relating to judicial review and determinations regarding excessive payment error rate claims pursuant to section 2025(c) of this title. 1985-Subsec. (a). Pub. L. 99-198 substituted "on application" for "an application" and "consideration by the court of the applicant's likelihood of prevailing on the merits and of irreparable injury" for "showing of irreparable injury". 1982-Subsec. (a). Pub. L. 97-253 substituted "section 2021 of this title, or a retail food store or wholesale food concern forfeits a bond under section 2021(d) of this title," for "section 2021 of this title,".1981- Pub. L. 97-98 designated existing provision as subsec. (a) and added subsec. (b). 1977- Pub. L. 95-113 substituted revised provisions for administrative and judicial review for provisions relating to violations and enforcement which are now covered by section 2024 of this title. 1972-Subsec. (e). Pub. L. 92-603 struck out subsec. (e) which provided that no person be charged with violation of this chapter or any other law on the basis of statements or information contained in affidavits filed under section 2019(c) of this title, except for fraud. 1971-Subsec. (a). Pub. L. 91-671, §7(a), provided for purchase of coupons.Subsec. (b). Pub. L. 91-671, §7(a), included alteration as an offense and made authorization to purchase cards the subject matter of the enumerated offenses. Subsec. (e). Pub. L. 91-671, §7(b), added subsec. (e).

STATUTORY NOTES AND RELATED SUBSIDIARIES

EFFECTIVE DATE OF 2008 AMENDMENT Amendment of this section and repeal of Pub. L. 110-234 by Pub. L. 110-246 effective May 22, 2008, the date of enactment of Pub. L. 110-234 except as otherwise provided, see section 4 of Pub. L. 110-246 set out as an Effective Date note under section 8701 of this title. Amendment by sections 4001(b) and 4002(a)(7) of Pub. L. 110-246 effective Oct. 1, 2008, see section 4407 of Pub. L. 110-246 set out as a note under section 1161 of Title 2, The Congress.

EFFECTIVE DATE OF 2002 AMENDMENT Pub. L. 107-171, title IV, §4117(b), May 13, 2002, 116 Stat. 316, provided that: "The amendment made by this section [amending this section] takes effect on the date of enactment of this Act [May 13, 2002]."

EFFECTIVE DATE OF 1993 AMENDMENT Amendment by Pub. L. 103-66 effective Oct. 1, 1991, see section 13971(b)(1)(A) of Pub. L. 103-66 set out as a note under section 2025 of this title.

EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100-435 effective Oct. 1, 1985, with respect to claims under section 2025(c) of this title for quality control review periods after such date, except as otherwise provided, see section 701(b)(5)(C), (D) of Pub. L. 100-435 set out as a note under section 2012 of this title.

EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-253 effective Sept. 8, 1982, see section 193(a) of Pub. L. 97-253 set out as a note under section 2012 of this title.

EFFECTIVE DATE OF 1981 AMENDMENT Amendment by Pub. L. 97-98 effective on earlier of Sept. 8, 1982, or date such amendment became effective pursuant to section 1338 of Pub. L. 97-98 set out as a note under section 2012 of this title, see section 192(b) of Pub. L. 97-253 set out as a note under section 2012 of this title. Amendment by Pub. L. 97-98 effective upon such date as Secretary of Agriculture may prescribe, taking into account need for orderly implementation, see section 1338 of Pub. L. 97-98 set out as a note under section 2012 of this title.

EFFECTIVE DATE OF 1977 AMENDMENT Pub. L. 95-113, title XIII, §1301, Sept. 29, 1977, 91 Stat. 958, provided that the amendment made by section 1301 is effective Oct. 1, 1977.

EFFECTIVE DATE OF 1972 AMENDMENT Amendment by Pub. L. 92-603 effective Jan. 1, 1973, see section 411(h) of Pub. L. 92-603 set out as a note under section 2012 of this title.

Household: "Household" means-(A) an individual who lives alone or who, while living with others, customarily purchases food and prepares meals for home consumption separate and apart from the others; or(B) a group of individuals who live together and customarily purchase food and prepare meals together for home consumption.
Retail food store: "Retail food store" means-(1) an establishment, house-to-house trade route, or online entity that sells food for home preparation and consumption and-(A) offers for sale, on a continuous basis, a variety of at least 7 foods in each of the 4 categories of staple foods specified in subsection (q)(1), including perishable foods in at least 3 of the categories; or(B) has over 50 percent of the total sales of the establishment or route in staple foods,as determined by visual inspection, sales records, purchase records, counting of stockkeeping units, or other inventory or accounting recordkeeping methods that are customary or reasonable in the retail food industry;(2) an establishment, organization, program, or group living arrangement referred to in paragraphs (3), (4), (5), (7), (8), and (9) of subsection (k);(3) a store purveying the hunting and fishing equipment described in subsection (k)(6);(4) any private nonprofit cooperative food purchasing venture, including those in which the members pay for food purchased prior to the receipt of such food, or agricultural producers who market agricultural products directly to consumers; and(5) a governmental or private nonprofit food purchasing and delivery service that-(A) purchases food for, and delivers the food to, individuals who are-(i) unable to shop for food; and(ii)(I) not less than 60 years of age; or(II) physically or mentally handicapped or otherwise disabled;(B) clearly notifies the participating household at the time the household places a food order-(i) of any delivery fee associated with the food purchase and delivery provided to the household by the service; and(ii) that a delivery fee cannot be paid with benefits provided under supplemental nutrition assistance program; and(C) sells food purchased for the household at the price paid by the service for the food and without any additional cost markup.
Secretary: "Secretary" means the Secretary of Agriculture.
State agency: "State agency" means (1) the agency of State government, including the local offices thereof, which has the responsibility for the administration of the federally aided public assistance programs within such State, and in those States where such assistance programs are operated on a decentralized basis, the term shall include the counterpart local agencies administering such programs, and (2) the tribal organization of an Indian tribe determined by the Secretary to be capable of effectively administering a food distribution program under section 2013(b) of this title or a supplemental nutrition assistance program under section 2020(d) of this title.
State: "State" means the fifty States, the District of Columbia, Guam, the Virgin Islands of the United States, and the reservations of an Indian tribe whose tribal organization meets the requirements of this chapter for participation as a State agency.
Supplemental nutrition assistance program: "Supplemental nutrition assistance program" means the program operated pursuant to this chapter.