Gonzalez v. U.S., C.A. No. 09-295-ML.

• Decision Date: 16 December 2009
• Docket Number: C.A. No. 09-295-ML.
• Citation: 675 F.Supp.2d 260
• Parties: Juan A. GONZALEZ d/b/a Gonzalez Grocery, Plaintiff, v. UNITED STATES of America, and Thomas Vilsack, Secretary, United States Department of Agriculture, Defendants.
• Court: U.S. District Court — District of Rhode Island

Page 260

675 F.Supp.2d 260

Juan A. GONZALEZ d/b/a Gonzalez Grocery, Plaintiff, v. UNITED STATES of America, and Thomas Vilsack, Secretary, United States Department of Agriculture, Defendants.

C.A. No. 09-295-ML.

United States District Court, D. Rhode Island.

December 16, 2009.

David A. Wollin, Jeffrey M. Crudup, Adler Pollock & Sheehan P.C., Providence, RI, for Plaintiff.

Leslie J. Kane, U.S. Attorney's Office, Providence, RI, for Defendants.

MEMORANDUM AND ORDER

MARY M. LISI, Chief Judge.

This matter is before the Court on Defendant's¹ Motion to Dismiss for Lack of Subject Matter Jurisdiction. For the reasons set forth below, Defendant's Motion to Dismiss is GRANTED.

I. OVERVIEW

On or about July 9, 2009, Juan Gonzalez ("Juan") d/b/a Gonzalez Grocery (collectively "Plaintiff') filed a Complaint against Thomas Vilsack, Secretary of the United States Department of Agriculture, and the United States ("Defendant"). On July 10, 2009, Juan filed the First Amended Complaint. Gonzalez Grocery is a Rhode Island sole proprietorship that participated in the Food Stamp Program. Compl. ¶¶ 3, 4.

On January 16, 2008, the United States Department of Agriculture ("USDA") sent a letter to Plaintiff accusing "Gonzalez Grocery of four specific trafficking violations which occurred between May and June of 2007." Id. ¶¶ 6, 7. The allegations included making multiple withdrawals from accounts of food stamp recipients "within unusually short time frames" and making "excessively large withdrawals." Id. ¶¶ 8-12. The letter notified Plaintiff that it had ten days to respond. Id. ¶ 13. Juan alleges that when he did respond in person before the USDA in Boston, Massachusetts, he was told that "no translator was available," despite Plaintiffs "struggle[] with English" as a native Spanish speaker. Id. ¶¶ 13, 23.

On March 28, 2008, the USDA sent a second letter informing Plaintiff that Gonzalez Grocery was "permanently disqualified from participating in the Food Stamp Program." Compl. ¶ 15. The letter explained in English that Plaintiff had ten days to mail a request for review for determination. Id. ¶ 21. The letter also explained that the recipient could call a phone number for assistance in Spanish. Id. ¶ 22. Plaintiff timely requested administrative review by letter dated April 3, 2008. (R. 94).

On August 13, 2008, the Administrative Review Officer issued a Final Agency Decision, upholding the permanent disqualification. (R. 121-127). On the same day, USDA sent a third letter, notifying Plaintiff that it was permanently disqualified from the Food Stamp Program, and informing Plaintiff in English that it had thirty days to appeal the ruling to federal court. (R. 128). On September 11, 2008, Juan spoke to USDA employee Robert Hughes, who advised Juan in English that "he had to appeal his determination in federal court. Compl. ¶ 26.

On July 10, 2009 Plaintiff filed the First Amended Complaint in this Court. Count I requests "Reversal of Defendant Determination by De Novo Review." Compl. ¶¶ 33-38. In Count I, Plaintiff alleges that the USDA did not meet its burden of proving food stamp trafficking because it did not present "direct evidence that Plaintiff exchanged food stamps for cash or other prohibited items ..." Compl. ¶ 35.

Count II alleges a violation of the Administrative Procedure Act, 5 U.S.C.A. § 701 et seq. Compl. ¶¶ 39-42. Count II alleges that the USDA "did not follow its own agency regulations" pursuant to 7 C.F.R. § 278.6(d). Id. ¶ 40(a). Count II further alleges that the USDA's determination was "arbitrary and capricious and contrary to the law because it was unsupported by substantial evidence." Id. ¶ 41. Although Defendant's Motion to Dismiss speaks broadly of Plaintiffs entire Complaint, neither party's motion papers specifically address Count II or the Administrative Procedure Act. Nevertheless, it is clear from the pleadings that Plaintiff, in Count II, requests the same judicial review as requested in Count I. The Court will therefore take up Count I and Count II together.

Finally, Count III alleges a violation of Procedural and Substantive Due Process under 42 U.S.C. § 1983. Compl. ¶¶ 43-51. Count III alleges that Plaintiff did not "understand the time limitation as English is not his native language . . ." and even if he did understand the requirement, "this short time span is wholly inadequate to muster proof, written or oral, to rebut the USDA's serious allegations . . ." Id. ¶¶ 45, 46.

II. STANDARD OF REVIEW

United States District Courts are "`courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.'" Olympic Mills Corp. v. Rivera Siaca, 477 F.3d 1, 6 (1st Cir.2007)(quoting Kokkonen v. Guardian Life Ins. Co. Of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). Pursuant to Fed.R.Civ.P. 12(b)(1), a party may seek dismissal of an action based on lack of subject matter jurisdiction. Once jurisdiction is challenged, the party invoking jurisdiction has the burden of establishing it. Murphy v. United States, 45 F.3d 520, 522 (1st Cir.1995).

The Court need not resolve factual disputes — it must "merely look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction . . ." Torres-Negron v. J & N Records, LLC, 504 F.3d 151, 162 (1st Cir.2007) (quoting Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999)). The Court construes the Complaint liberally and takes all factual allegations contained therein as true, indulging all reasonable inferences in favor of the non-moving party. Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir.1996). The Plaintiff, however, may not satisfy its burden by resting on "unsupported conclusions or interpretations of law." Murphy, 45 F.3d at 522 (quoting Washington Legal Found. v. Massachusetts Bar Found., 993 F.2d 962, 971 (1st Cir.1993)).

III. ANALYSIS

Defendant has moved to dismiss all three claims in the First Amended Complaint for lack of subject matter jurisdiction. The Court takes up Counts I and II together first, as both claims request judicial review of administrative action. Next, the Court takes up Count III.

A. Counts I and II

Defendant argues that the Court lacks subject matter jurisdiction under the Food Stamp Act, 7 U.S.C. § 2023, because Plaintiff failed to file a timely request for judicial review. The deadline for Plaintiff to file a request for judicial review was September 13, 2008; yet Plaintiff did not file the Complaint until July 9, 2009, more than ten months later. In response, Plaintiff argues that the claims should survive because it is entitled to invoke equitable tolling. The Court must first determine whether equitable tolling is available to Plaintiff, and if so, whether it should be applied in this case.

The Food Stamp Act states —

If the store ... feels aggrieved by such final determination, it may obtain judicial review thereof by filing a complaint against the United States ... 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.

7 U.S.C. § 2023(a)(13). Regulation 7 C.F.R. § 279.7(a) further provides that the complaint must be "filed within 30 days after the date of delivery or service ... otherwise the determination shall be final."

A claim against the United States is barred absent waiver of sovereign immunity. United States v. Nordic Village, Inc., 503 U.S. 30, 34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). The United States may waive sovereign immunity, but such waiver must be unequivocal and may not be implied. United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969). Moreover, waiver of sovereign immunity must be strictly construed in favor of the sovereign so as to avoid extending the waiver beyond what Congress intended. Nordic Village, Inc., 503 U.S. at 34 112 S.Ct. 1011; United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980).

Here, Defendant concedes that the United States waived sovereign immunity, but only to the extent that the "plaintiff files his complaint within thirty days of receiving his final administrative decision." Defendant's Motion to Dismiss, at 7. Defendant argues that because Plaintiff failed to file a complaint within thirty days of receiving the final administrative decision, sovereign immunity bars his suit.

Plaintiff bears the burden of proof in establishing that a basis for equitable tolling exists, as "it is settled that parties relying on an estoppel have the burden of proving it." Rivera-Gomez v. de Castro, 900 F.2d 1, 3 (1st Cir.1990). In an attempt to meet this burden, Plaintiff relies heavily on Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). In Irwin, the Supreme Court considered whether an employee who filed an untimely Title VII suit against his employer, the Department of Veterans Affairs, could invoke equitable tolling. Irwin, 498 U.S. at 93, 111 S.Ct. 453. The Supreme Court held that although the employee's suit was untimely, the doctrine of equitable tolling applied. Id. at 95, 111 S.Ct. 453. The Court concluded that the "same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States." Id. at 95-96, 111 S.Ct. 453.

Plaintiff argues that under Irwin's holding, the thirty day limitation should be equitably tolled and its claims should survive Defendant's Motion to Dismiss. Defendant argues, however, that the Supreme Court has distinguished Irwin's application of equitable tolling, and held that it does not apply to "jurisdictional" statutes like the statute in issue here. See Defendant's Reply to Plaintiffs Objection, at 7 (citing John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008)).

In John R. Sand & Gravel Co., the Supreme Court addressed whether "a court must raise on its own the...