Wilson v. U.S. Dept. of Agriculture, Food and Nutrition Service

• Decision Date: 15 September 1978
• Docket Number: No. 76-1977,76-1977
• Parties: William F. WILSON, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF AGRICULTURE, FOOD AND NUTRITION SERVICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 137

584 F.2d 137

William F. WILSON, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF AGRICULTURE, FOOD AND NUTRITION

SERVICE, Defendant-Appellee.

No. 76-1977.

United States Court of Appeals,

Sixth Circuit.

Submitted Nov. 18, 1977.

Decided Sept. 15, 1978.

Dale M. Morris, Hodgenville, Ky., for plaintiff-appellant.

Albert Jones, U. S. Atty., James H. Barr, Asst. U. S. Atty., Louisville, Ky., for defendant-appellee.

Before PHILLIPS, Chief Judge, and EDWARDS and MERRITT, Circuit Judges.

MERRITT, Circuit Judge.

This case involves the broad question of whether the Secretary of Agriculture can set rules of civil procedure for state courts in the trial of federal food stamp cases. Specifically, the issue involved here is whether the Secretary can require a state trial court sitting in a federal food stamp case to follow federal rules of civil procedure for the service of process.

This case arises from the United States' attempted removal to federal court of a food stamp suit originally brought in Kentucky state court. The federal removal statute, 28 U.S.C. § 1446 (1970), requires that the defendant file a removal petition in federal court "within thirty days" after receiving service of process. In food stamp cases, the Secretary has promulgated regulations requiring that all courts federal and state follow Rule 4 of the Federal Rules of Civil Procedure regarding service of process. The Government here did not file its removal petition until ten months after receiving service of process which was executed properly under Kentucky law but not in accordance with the requirements of Rule 4. Relying on the Secretary's regulation, the Government claims that service of process in this case was invalid and, therefore, that the 30-day limit in the federal removal statute never began to run. We reject this argument because it is premised on a regulation which the Secretary had no power to make, at least in the absence of explicit statutory authority. We thus find that the Government's removal petition came too late, filed as it was ten months after process was served in accordance with Kentucky rules of procedure. We therefore hold that the case was improperly removed and the district court was without jurisdiction to hear this suit, and we reverse and remand the case to the state court from which it was removed.

STATEMENT OF THE CASE

Appellant, Wilson, owns a small food store in Kentucky and has been accused of illegally selling non-food items in exchange for food stamps. See The Food Stamp Act of 1964, 7 U.S.C. §§ 2011-26 (1976) (amended 1977). Following an administrative hearing, the Food and Nutrition Service (hereinafter "FNS"), an agency of the United States Department of Agriculture, ordered Wilson suspended for six months from participation in the food stamp program.

Having exhausted his administrative appeals, Wilson sought judicial relief under 7 U.S.C. § 2022 (current version at 7 U.S.C.A. § 2023 (1978) ) which provided that a store owner suspended from the program by the FNS is entitled to "a trial de novo" in a United States District Court or any state court of "competent jurisdiction." ¹ Alleging that he had been wrongly convicted, Wilson filed suit under § 2022 in the Circuit Court of LaRue County, Kentucky, naming as defendant the FNS regional office in Atlanta. ²

In regard to service of process, § 2022 stated only that "(t)he copy of the summons and complaint required to be delivered to the official or agency whose order is being attacked shall be sent to the Secretary (of Agriculture) or such person or persons as he may designate to receive service of process." The Food Stamp Act therefore said nothing about service of process in state court, except that process should be served on the Secretary or his delegate. The Secretary of Agriculture, pursuant to § 2022 and his general regulatory powers under the Food Stamp Act (7 U.S.C. § 2013 (1976) (amended 1977) ), issued a regulation requiring that whether a suit under the Act is brought in state or federal court, service of process in either case "shall be made in accordance with the Rules of Civil Procedure for the United States District Courts," ³ which require in Rule 4(d)(4) that a summons and copy of the complaint be sent to the United States Attorney, the Attorney General, and to the federal agency whose actions are being challenged.

Wilson filed his complaint on January 11, 1974. The county court clerk served a summons and a copy of the complaint on the director of the FNS Atlanta office:

R. Hicks Elmore

Dir. Food Stamp Program

1100 Spring St.

Atlanta, Ga. 30309

No other process was issued.

On January 23, regional counsel for the United States Department of Agriculture called the United States Attorney in the Western District of Kentucky to inform him that the FNS office in Atlanta had received Wilson's summons and complaint. The U. S. Attorney's office, which had not heard of the matter, asked that copies of the summons and complaint be mailed to Kentucky where the U. S. Attorney received them January 28.

On March 20, more than 60 days after the complaint was filed in state court, an Assistant United States Attorney in the Western Kentucky District wrote Wilson's lawyer:

This office received via mail from our Atlanta, Ga., Regional Attorney a summons and complaint in the above-styled case. Please be advised that service must also be made by sending copies of process and complaint by REGISTERED or CERTIFIED MAIL to the Attorney General of the United States, Washington, D. C., pursuant to 28 U.S.C. § 2410(b). We have not yet been advised that such service If this is not done, the United States has no other recourse but to move for dismissal.

has been made. After service upon the Attorney General, the United States has sixty days to respond.

After receiving this advice, Wilson's counsel mailed a copy of the summons and complaint to the following address:

George J. Long

U.S. Atty. Gen.

Washington, D. C.

Apparently, neither Long, who was then the U. S. Attorney for the Western District, nor the Attorney General ever received the letter.

On June 4, 1974, approximately five months after the complaint was filed in state court, the United States Attorney moved to dismiss the state court suit on the grounds that neither he nor the Attorney General had been properly served with process in accordance with Rule 4(d)(4) of the Federal Rules of Civil Procedure. At the same time, Wilson asked the state court to issue an injunction against the Food and Nutrition Service to prevent them from suspending him from the food stamp program. On June 8, the U. S. Attorney responded to the motion for an injunction by repeating that he had not been properly served.

On October 21, 1974 (ten months after the complaint was filed), before the state court had ruled on either party's motion, the United States Attorney filed a petition pursuant to 28 U.S.C. § 1441 to remove the case to the United States District Court for the Western District of Kentucky, sending copies of the petition both to Wilson and the state court. In accordance with § 1446(e) of the removal statute, the state court issued an order staying all further state proceedings in the case.

THE REMOVAL ISSUE

The issue here is whether the Government filed the removal petition within the thirty day period set by statute. The removal statute provides, in part:

The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, Or within thirty days after the service of summons upon the defendant if such initial pleading has been filed in court and is not required to be served on the defendant, Whichever period is shorter. 28 U.S.C. § 1446(b) (emphasis added). ⁴

Thus, the statute requires that the removal petition be filed within thirty days after the government receives, through service of process or otherwise, a summons or copy of the complaint. But before we determine whether and at what time service was completed, we must first decide what rules of procedure govern service of process in this case.

The Food Stamp Act itself, which gives Wilson the right to bring this lawsuit, requires only that a copy of the summons and complaint be served upon the Secretary of Agriculture or his appointed delegate. Wilson has complied with this requirement by serving process upon Elmore, the director of the Atlanta FNS office, who is the Secretary's appointed delegate to receive service of process in suits brought under the Food Stamp Act. ⁵

The Act does not require that Wilson also comply with the Federal Rules of Civil Procedure regarding service of process. It does give Wilson the right to bring his suit in state court, however; and, at least in the absence of explicit statutory authority, the Secretary of Agriculture has no power to prescribe rules of procedure governing service of process in state court. We, therefore, hold that the question whether Wilson properly executed service of process on the defendant must be determined by Kentucky law, not the Federal Rules of Civil Procedure, or rules of procedure for state courts prescribed by the Secretary of Agriculture.

As Professor Hart wrote in 1954:

The general rule, bottomed deeply in belief in the importance of state control of state judicial procedure, is that federal law takes the state courts as it finds them. ⁶

The traditional principle of federalism is that, as long as state rules of practice do not "impose unnecessary burdens upon rights of recovery authorized by federal laws," neither Congress nor the federal courts has the power to change them. Brown v. Western Railway of Alabama, 338 U.S. 294, 298, 70 S.Ct. 105, 108, 94 L.Ed. 100 (1949). No claim is made or could reasonably be made here that the Kentucky Rules of Civil Procedure...