BARSERIAN v. UNITED States Dep't of AGRICULTURE

• Decision Date: 15 April 2011
• Docket Number: CASE NO. CV F 10-2309 LJO GSA
• Parties: KALEM H. BARSERIAN, dba American Dried Fruit Company, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant.
• Court: U.S. District Court — Eastern District of California

KALEM H. BARSERIAN, dba American Dried Fruit Company, Plaintiff,

v.UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant.

CASE NO. CV F 10-2309 LJO GSA

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: April 15, 2011

ORDER ON DEFENDANTS' F.R.Civ.P. 12 MOTION TO DISMISS FIRST AMENDED COMPLAINT (Doc. 11.)

INTRODUCTION

Defendant U.S. Department of Agriculture ("USDA") seeks to dismiss as untimely and thus failing to invoke this Court's subject matter jurisdiction the action of pro se plaintiff Kalem H. Barserian ("Mr. Barserian"), doing business as American Dried Fruit Company ("ADFC"), to seek judicial review of a USDA order regarding regulation of California raisins. Mr. Barserian responds that "procedural irregularities and misleading information" excuse his filing this action untimely. This Court considered USDA's F.R.Civ.P. 12(b)(1) motion to dismiss on the record and VACATES the April 27, 2011 hearing, pursuant to Local Rule 230(g). For the reasons discussed below, this Court DISMISSES this action.

BACKGROUND¹

USDA Proceedings

Mr. Barserian operates ADFC as a sole proprietorship. ADFC is a California handler/packer registered with the Raisin Administrative Committee ("RAC") and is regulated by RAC by the federal Raisin Order for California Raisins ("Raisin Order"),7 C.F.R. §§ 989.1, et seq. The RAC is the USDA agency responsible to administer the Raisin Order.

On March 11, 2010, ADFC filed its administrative petition, pursuant to 7 U.S.C. § 608c(15)(A), "challenging USDA's unlawful interpretation and application of the Raisin Order provisions, and seeking declaratory relief that a raisin handler may 'cause' inspection and certification by compelling other interested parties to apply and pay for them."

By a May 27, 2010 decision, a USDA administrative law judge ("ALJ") "improperly dismissed the Petition, claiming that the Petition fails to state a claim." The decision refers to ADFC as "Petitioner." Hearing Clerk L. Euguene Whitfield's ("Mr. Whitfield's") May 27, 2010 letter ("May 27 letter") enclosed the decision and its subject line referred to "Respondent" as "Kalem H. Barserian d/b/a American Dried Fruit Co." although the petitioner was ADFC. The May 27 letter references an incorrect case number. The May 27 letter states in part:

Each party has thirty (30) days from the service of this Opinion and Order in which to file an appeal to the Department's Judicial Officer.

If no appeal is filed, the Decision and Order shall become binding and effective as to each part [sic] thirty-five days after service. However, no Decision is final for purposes of judicial review except a final order issued by the Secretary or the Judicial Officer pursuant to an appeal.

In the even [sic] you elect to file an appeal, an original and 4 copies are required. You are also instructed to consult § 1.45 of the Uniform Rules of Practice (7 C.F.R.§ 1.145) for the procedure for filing an appeal.

Mr. Barserian notes that the May 27 letter "omitted information about seeking judicial review after a petition to the Secretary's Judicial Officer ("JO") for reconsideration.

On June 25, 2010, ADFC filed an appeal petition before a USDA judicial officer ("JO"), who issued an August 20, 2010 decision ("August 20 JO decision") to affirm the ALJ's decision and thus deny Mr. Barserian's appeal. Mr. Whitfield sent Mr. Barserian an August 23, 2010 letter ("August 23 letter") to enclose the JO's decision and which stated:

Judicial review of this decision is available in an appropriate court if an appeal is timely filed. This office does not provide information on how to appeal. Please refer to the governing statute. If you are not currently represented by an attorney, you may choose to seek legal advice regarding an appeal.

Prior to filing an appeal respondent may file a petition for reconsideration of the Judicial Officer's decision within 10 days of service of the decision. (Bold added.)

The FAC alleges that the "instructions are false and misleading because a petition for reconsideration of a JO's decision can only be made after an appeal" and that Mr. Barserian did not know that under regulations,"a final decision by the JO is automatically stayed, and the time for judicial review does not begin to run, until action on the petition for reconsideration." Mr. Barserian claims that the August 23 order misrepresented the May 27 letter by indicating: "This office does not provide information on how to appeal." Mr. Barserian faults the August 23 letter's failure to refer to 7 C.F.R. § 1.146 ("section 1.146"), which permits a petition to reconsider a JO decision. Section 1.146(b) provides in pertinent part:

The decision of the Judicial Officer shall automatically be stayed pending the determination to grant or deny a timely petition. Such decision shall not be final for purposes of judicial review until the petition is denied or the decision is affirmed or modified pursuant to the petition and the time for judicial review shall begin to run upon the filing of such final action on the petition. (Bold added.)

Mr. Barserian filed a September 7, 2010 reconsideration petition which the JO's October 7, 2010 order ("October 7 order") denied. Mr. Whitfield's October 7, 2010 letter ("October 7 letter") sent by certified mail to Mr. Barserian enclosed the JO's order and stated:

Judicial review of this decision is available in an appropriate court if an appeal is timely filed. This office does not provide information on how to appeal. Please refer to the governing statute. If you are not currently represented by an attorney, you may choose to seek legal advice regarding an appeal.

The FAC alleges that the "JO omitted notice of the right to seek judicial review of that particular Order or that the August 20, 2010 Order would become final agency action for purposes of judicial review." The FAC further alleges that the October 7 letter was false and misleading by indicating that "judicial review is available if an 'appeal' is filed" and that "USDA does not provide information on how to appeal."

Mr. Barserian's Claims

On December 10, 2010, Mr. Barserian filed his original complaint to seek a "declaratory order that the agency's actions were arbitrary, capricious, and not otherwise in accordance with law" and a further order "setting aside the agency's initial and final decisions and orders." In response to USDA's motion to dismiss, Mr. Barserian filed his FAC to allege that Mr. Whitfield "omitted instructions about seeking judicial review of the [October 7] order denying Plaintiff's petition for reconsideration" and "falsely claimed [his] office does not provide information on how to appeal. As such, Plaintiff could not have reasonably know that the 20-day limitation had begun to run on May 20, 2010."² The FAC further alleges that USDA "should be equitably estopped from asserting that Plaintiff failed to comply with the twenty day time limit because Defendant failed to provide accurate instructions to Plaintiff concerning timing and availability of judicial review was [sic] a prejudicial error that caused Plaintiff to suffer a legal wrong entitling him to judicial review."

DISCUSSION

F.R.Civ.P. 12(b)(1) Motion To Dismiss Standards

USDA contends that Mr. Barserian's failure to file this action within 20 days of the October 7 order bars invocation of this Court's subject matter jurisdiction.

F.R.Civ.P. 12(b)(1) authorizes a motion to dismiss for lack of subject matter jurisdiction. Fundamentally, federal courts are of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 341 (1994). A "court of the United States may not grant relief absent a constitutional or valid statutory grant of jurisdiction." U.S. v. Bravo-Diaz, 312 F.3d 995, 997 (9^th Cir. 2002). "A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock West, Inc. v. Confederated Tribes, 873 F. 2d 1221, 1225 (9^th Cir. 1989). Limits on federal jurisdiction must neither be disregarded nor evaded. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396 (1978). A plaintiff bears the burden to establish that subject matter jurisdiction is proper. Kokkonen, 511 U.S. at 377, 98 S.Ct. 2396; see Tosco Corp. v. Communities for Better Environment, 236 F.3d 495, 499 (9^th Cir. 2001) ("plaintiff has burden of proving jurisdiction" to survive a F.R.Civ.P. 12(b)(1) motion to dismiss).

When addressing an attack on the existence of subject matter jurisdiction, a court "is not restricted to the face of the pleadings." McCarthy v. U.S., 850 F.2d 558, 560 (9^th Cir. 1988). In such a case, a court may rely on evidence extrinsic to the pleadings and resolve factual disputes relating to jurisdiction. St. Clair v. City of Chico, 880 F.2d 199, 201 (9^th Cir.), cert. denied, 493 U.S. 993, 110 S.Ct. 541 (1989); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9^th Cir. 1987); Augustine v. United States, 704 F.2d 1074, 1077 (9^th Cir. 1983); Smith v. Rossotte, 250 F.Supp.2d 1266, 1268 (D. Or. 2003) (a court "may consider evidence outside the pleadings to resolve factual disputes apart from the pleadings").

No presumptive truthfulness attaches to a plaintiff's allegations, and the existence of disputed material facts does not preclude evaluation of the merits of jurisdictional claims. Thornhill Pub. Co., Inc. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9^th Cir. 1979). On a factual attack of a complaint with affidavits or other evidence, "the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Savage v. Glendale Union High School, 343 F.3d 1036, 1040, n. 2 (9^th Cir. 2003).

"The plaintiff always bears the burden of establishing subject matter jurisdiction. In effect, the court presumes lack of jurisdiction until the plaintiff proves otherwise." Valdez v. U.S., 837 F.Supp. 1065,...