Babies Right Start, Inc. v. Ga. Dep't of Pub. Health

• Decision Date: 09 September 2013
• Docket Number: No. S13A1074.,S13A1074.
• Parties: BABIES RIGHT START, INC. v. GEORGIA DEPARTMENT OF PUBLIC HEALTH.
• Court: Georgia Supreme Court

293 Ga. 553

748 S.E.2d 404

BABIES RIGHT START, INC.

v.GEORGIA DEPARTMENT OF PUBLIC HEALTH.

No. S13A1074.

Supreme Court of Georgia.

Sept. 9, 2013.

Anthony Charles Talbott Lake, Gillen, Parker & Withers, LLC, Atlanta, for appellant.

Jason Samuel Naunas, Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Dennis R. Dunn, Deputy Atty. Gen., Shalen S. Nelson, Sr. Asst. Atty. Gen., Department of Law, for appellee.

NAHMIAS, Justice.

Babies Right Start, Inc. (“BRS”) appeals the trial court's order denying its claims for mandamus, injunctive, and declaratory relief against BRS's one-year administrative disqualification from participation in a federal benefits program administered by the State. However, the disqualification period ended almost a year ago, rendering moot the relief that BRS requested; BRS did not seek an award of damages (other than attorney fees) in the trial court; and this case does not fall within the narrow exception to mootness for disputes that are capable of repetition, yet evade judicial review. This case is now moot, and we therefore vacate the trial court's judgment and remand the case with direction that it be dismissed.

1. The Georgia Department of Public Health administers the federal Special Supplemental Nutrition Program for Women, Infants, and Children (“WIC”) in Georgia.¹ On March 3, 2009, the Department entered into a vendor agreement with Babies Right Start, Inc., authorizing BRS to serve as a WIC vendor until September 30, 2010. On five occasions from January 26 to July 7, 2010, a Department investigator visited BRS's store and allegedly found multiple WIC violations. On November 9, 2010, the Department issued a notice disqualifying BRS as a WIC vendor for one year.

BRS exercised its right under the Georgia Administrative Procedure Act (“APA”) to appeal the disqualification through the Office of State Administrative Hearings. See OCGA § 50–13–42(a); Ga. Comp. R. & Regs. 111–9–1–.06(1) (2010). An administrative law judge (“ALJ”) conducted an evidentiary hearing and then in February 2011 issued an order in the Department's favor with respect to most of the alleged WIC violations. However, the ALJ concluded that the Department used the wrong sanction schedule, reversed the one-year disqualification, and remanded the action to the Department with direction to instead put BRS on probation for six months.

Pursuant to OCGA § 50–13–17(a), the Department applied for review of the ALJ's decision by the Agency Appeals Reviewer. BRS filed a motion to dismiss on the ground that the ALJ's decision was the “final State agency action” under 7 C.F.R. § 246.18(e) and, to the extent the Georgia APA authorized further administrative review, it was preempted by the federal regulation. In April 2011, the Reviewer issued an order denying the motion to dismiss and reversing the ALJ's decision, thereby upholding BRS's one-year disqualification.

BRS then filed a complaint in the Superior Court of Fulton County, challenging the Agency Appeals Reviewer's decision on the grounds that 7 C.F.R. § 246.18(e) preempted the Georgia APA's authorization of further administrative review of the ALJ's decision and that the Reviewer erred on the merits by concluding that the Department used the correct sanction schedule in imposing the one-year WIC disqualification. On October 17, 2011, the trial court issued a final order denying BRS's claims.

BRS filed an application for discretionary appeal in the Court of Appeals, but BRS did not seek an injunction pending appeal from either the trial court or the appellate court in an effort to preserve the status quo. See OCGA § 9–11–62(c) and (e). As a result, BRS's one-year WIC disqualification took effect.

On December 2, 2011, the Court of Appeals granted BRS's application for discretionary appeal, and BRS filed a notice of appeal to that court. On July 19, 2012, however, the Court of Appeals transferred the case to this Court on the ground that BRS's preemption argument brings the appeal under our constitutional question jurisdiction. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. II(1); Ward v. McFall, 277 Ga. 649, 651, 593 S.E.2d 340 (2004). Because the Court of Appeals lacks jurisdiction over this case and consequently lacked authority to grant BRS's application to appeal, on December 14, 2012, this Court entered an order striking the granted appeal from our docket and directing our Clerk to re-docket the case as a discretionary application. We granted the application on January 14, 2013, and BRS filed a timely notice of appeal to this Court. On May 23, 2013, the Department filed a “Suggestion of Mootness,” and on June 3, 2013, BRS filed a response.

2. (a) The Department contends that this case is moot based on the expiration of BRS's one-year disqualification from the WIC program and BRS's alleged voluntary withdrawal from the federal food stamp program (SNAP), which would bar BRS from being a WIC vendor. BRS disputes that it voluntarily withdrew from SNAP but does not dispute that its WIC disqualification has long since expired. Consequently, BRS's claims for mandamus and injunctive relief to stop that disqualification and for a declaratory judgment that the disqualification was improper are clearly now moot; if granted, such relief would have no effect. See Citizens to Save Paulding County v. City of Atlanta, 236 Ga. 125, 125, 223 S.E.2d 101 (1976) (“When injunctive relief is denied at the trial level, and injunctive relief pending appeal is not allowed by either the trial court or the Supreme Court, ... there is no legal prohibition against the consummation of the act or transaction. And once the act or transaction has been consummated, an appeal from the judgment that denied injunctive relief becomes moot.”). BRS's complaint also specifically prayed for attorney fees, but such a prayer, without an actual award of fees, does not preclude a determination that the case is moot, and BRS does not contend otherwise. See Fox v. Bd. of Trs. of State Univ. of N.Y., 42 F.3d 135, 141 n. 4 (2d Cir.1994) (citing Lewis v. Continental Bank Corp., 494 U.S. 472, 480, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)).

(b) BRS argues that the case is not entirely moot, however, because the complaint also prayed for “such other and further relief as [the trial court] may deem necessary or proper” and BRS allegedly suffered damages after the trial court entered its final order and the WIC disqualification went into effect. BRS notes in this respect that the statute of limitation on a claim for breach of contract against the Department has not yet expired. The problem with this argument is that BRS did not pray for damages and BRS did not obtain a ruling from the trial court on whether a damages claim could come within the complaint's general prayer for relief. BRS also did not seek to amend the complaint after the trial court entered its order to add a prayer for damages or a count for breach of contract. Instead, BRS elected to appeal. Even now, in response to the Department's suggestion of mootness, BRS says only that it might seek damages from the Department for breach of contract at some point in the future.

We decline to read into BRS's complaint a prayer for damages that is not there. Notice pleading has its limits. One of those limits is expressed in OCGA § 9–11–8(a)(2)(B), which says that “any pleading which sets forth a claim for...