The opinion of the court was delivered by: Oliver W. Wanger, United States District Judge
MEMORANDUM DECISION RE: DEFENDANT'S MOTION TO DISMISS
Plaintiffs are individuals and entities that do business in the raisin industry. (First Amended Complaint ("FAC"), Doc. 13, ¶¶ 1-7.) In March 2007, Plaintiffs filed an administrative petition before the Secretary of Agriculture pursuant to 7 U.S.C. § 608c(15)(A), seeking to modify or exempt Plaintiffs from the Raisin Marketing Order, which regulates the handling of raisins in California, issued under the Agricultural Marketing Agreement Act ("AMAA"). (FAC ¶¶ 9, 11 & Ex. 4.) The U.S. Department of Agriculture ("USDA" or "Defendant") moved to dismiss the administrative petition, asserting that Plaintiffs lacked standing. (FAC ¶9.) An Administrative Law Judge ("ALJ") denied USDA's motion to dismiss. Id. On February 4, 2008, a Judicial Officer ("JO") vacated the ALJ's decision and dismissed the petition. Id. Plaintiffs allege that their counsel "did not receive said 'decision' until March 4, 2008." Id.
Before the court for decision is USDA's motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). USDA argues that this court lacks jurisdiction over Plaintiffs' complaint, filed March 18, 2008, because it was not "filed within twenty days following the date of entry" of the JO's February 4, 2008 ruling as required by the AMAA. (Doc. 15-2.) Plaintiffs concede that their complaint was not filed within the twenty day statutory time period, but assert that it was timely filed when considered in the context of due process. (Doc. 19 at 4.) Alternatively, Plaintiffs allege that the district court has jurisdiction pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 702, et seq., and/or the Tucker Act, 28 U.S.C. § 1346. (Id.)
Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a motion to dismiss for lack of subject matter jurisdiction. It is a fundamental precept that federal courts are courts of limited jurisdiction. Limits upon federal jurisdiction must not be disregarded or evaded. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978); United States v. Bravo-Diaz, 312 F.3d 995, 997 (9th Cir. 2002) ("It is fundamental to our system of government that a court of the United States may not grant relief absent a constitutional or valid statutory grant of jurisdiction."). The plaintiff has the burden to establish that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).
A challenge to jurisdiction under Rule 12(b)(1) "can be either facial, confining the inquiry to allegations in the complaint, or factual, permitting the court to look beyond the complaint." Savage v. Glendale Union High School, 343 F.3d 1036, 1039-40 n.2 (9th Cir. 2003). When a defendant challenges jurisdiction facially, all material allegations in the complaint are assumed true, and the question for the court is whether the lack of federal jurisdiction appears from the face of the pleading itself. See Thornhill Publishing Co. v. General Telephone Electronics, 594 F.2d 730, 733 (9th Cir. 1979)
In a factual Rule 12(b)(1) challenge, "the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). The district court need not presume the truthfulness of the plaintiff's allegations. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).
In order for suit to lie against the United States and its agencies, officers and employees, there must be an express waiver of sovereign immunity. FDIC v. Meyer, 510 U.S. 471, 475 (1994). The terms of the consent to suit define a court's jurisdiction. United States v. Sherwood, 312 U.S. 584, 586-87 (1940). "[T]he Government's consent to be sued must be construed strictly in favor of the sovereign." United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992) (citations and internal quotation marks omitted).
A. The Statutory Time Limit
Plaintiffs bring this action under 7 U.S.C. § 608c(15)(B), which provides the mechanism for judicial review of a ruling on a petition to modify a marketing order:
The District Courts of the United States ... in any district in which such handler is an inhabitant, or has his principal place of business, are hereby vested with jurisdiction in equity to review such ruling, provided a bill in equity for that purpose is filed within twenty days from the date of the entry of such ruling. Service of process in such proceedings may be had upon the Secretary by delivering to him a copy of the bill of complaint. If the court determines that such shall remand such proceedings to the ruling is not in accordance with law, it such ruling as the court shall determine to Secretary with directions either (1) to make such further proceedings as, in its opinion, be in accordance with law, or (2) to take the law requires.... 7 U.S.C. § 608c(15)(B) (emphasis added).
Plaintiffs concede that the JO's ruling, from which they seek review, issued and was entered into the record of the case on February 4, 2008. (FAC ¶¶ 9, 16 & Ex. 2.) This federal court action was filed on March 18, 2008, ...