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SALMO v. U.S. DEPARTMENT OF AGRICULTURE

October 4, 2002

FIRAS SALMO, AN INDIVIDUAL; SALMO, INC., A CALIFORNIA CORPORATION DBA VALUE KING SUPERMARKET, PLAINTIFF
V.
UNITED STATES DEPARTMENT OF AGRICULTURE, DEFENDANTS.



The opinion of the court was delivered by: Anthony J. Battaglia, United States District Judge

Order Granting Defendant's Motion to Dismiss [Doc No. 8]

The Government moves to dismiss Plaintiffs' complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of federal subject matter jurisdiction. The Plaintiffs have filed a Notice of Non-Opposition, stating that they do not oppose dismissal of this action without prejudice as they anticipate filing a complaint in state court regarding the same subject matter. Plaintiffs have filed no substantive opposition to the Government's motion. The parties have consented in writing to the hearing and disposition of all matters in this case by Magistrate Judge Battaglia.

The argument presented by Defendant in this case, that 7 U.S.C. § 2021(g)(2)(C) deprives this Court of federal subject matter jurisdiction, is novel — no other court has addressed this issue. Nonetheless, this Court concludes that the Government is correct, and that this Court lacks jurisdiction to review the decision of the Food and Nutrition Service of the United States Department of Agriculture, disqualifying the Plaintiff store from participating in the Federal Food Stamp Program. Thus, for the reasons set forth herein, the Government's motion is GRANTED.

Standard of Review for Defendant's Motion

"Federal courts are courts of limited jurisdiction. . . . It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) (citations omitted). On a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, the moving party may rely upon affidavits or other evidence properly before the court. Ass'n of Am. Med. Colleges v. United States, 217 F.3d 770, 778 (9th Cir. 2000). The court may consider these extra-pleading materials and resolve factual disputes, if necessary. Id. If the moving party produces evidence in support of its motion, the opposing party must then present its own affidavits or other evidence "to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction." Id. (quoting St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989)).

The Statutory Basis of Jurisdicdon

The United States and its agencies are immune from suit absent a waiver of sovereign immunity. Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir. 1997). "The terms of the United States' consent to be sued in any court define that court's jurisdiction to entertain the suit." Id. The scope of this Court's subject matter jurisdiction to review the decision of the Food and Nutrition Service ("FNS") of the United States Department of Agriculture is defined by the statutes providing for judicial review of such decisions. Gallo Cattle Company v. United States Dept. of Agriculture, 159 F.3d 1194, 1197 (9th Cir. 1998) (statute providing for judicial review of USDA's Dairy Promotion Program defines scope of federal court's subject matter jurisdiction over such actions). Plaintiffs filed this action pursuant to 7 U.S.C. § 2023, seeking judicial review of the December 12, 2001, notice by the ENS disqualifying the store from participating in the Federal Food Stamp Program ("FSP") for three years pursuant to 7 U.S.C. § 2021(g). Section 2023, upon which Plaintiffs rely for jurisdiction in this case, provides in pertinent part as follows:

(a)(1) Whenever . . . 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 . . . 28 notice of such administrative action shall be issued to the retail food store, wholesale food concern, or State agency involved.
(2) Such notice shall be delivered by certified mail or personal service.
(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.
(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.
(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 ...

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