Opinion
MEMORANDUM DECISION RE: DEFENDANT'S MOTION TO DISMISS.
OLIVER W. WANGER, District Judge.
I. INTRODUCTION
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. )
II. STANDARD DECISION.
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).
III. DISCUSSION
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 ruling is not in accordance with law, it shall remand such proceedings to the Secretary with directions either (1) to make such ruling as the court shall determine to be in accordance with law, or (2) to take such further proceedings as, in its opinion, 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, forty-three days after entry of the JO's ruling. (See Doc. 1.)
Plaintiffs argue that the twenty-day time limit for seeking judicial review should be computed not from the date of entry of the ruling, as the statute provides, but from some later date, either the time that the hearing clerk mailed the ruling that eventually reached Plaintiffs' counsel on March 4, 2008, or from the date Plaintiffs actually received it. (See FAC ¶9.)
The USDA maintains that the hearing clerk posted the JO's decision by certified mail addressed to Plaintiffs' counsel on February 4, 2008, the same day the decision was entered. (Declaration of Kenneth H. Vail ("Vail Decl."), (Doc. 15-3, ¶¶ 1-2, 4.) USDA asserts that the certified mailing was unclaimed by Plaintiffs' counsel, returned to the hearing clerk's office on February 27, 2008, and then re-posted by regular mail. (Id. at ¶¶ 3-4.)
Mr. Vail is the Assistant General Counsel of USDA's Marketing Division. Attached to his declaration are a cover letter from the Office of the Hearing Clerk to Plaintiffs' counsel, and various mail material receipts. Plaintiffs objects to his declaration on the ground that he could not possibly have had personal knowledge of sending and/or receiving any letters from the Hearing Clerk's Office, because he does not work in that office. (Doc. 22.) Defendant correctly responds that this objection is not relevant, as Mr. Vail does not assert personal knowledge of the underlying events. Rather, he certifies that each of the attached copies is a true, correct, and compared copy of a document in the official custody of the Secretary of Agriculture, admissible under Federal Rule of Evidence 902(4), which provides that extrinsic evidence of authenticity is not required with respect to "[a] copy of an official record or report or entry... certified as correct by the custodian or other person authorized to make the certification." (Doc. 23-2.) See also Fed. R. Evid. 1005 (permitting the contents of an official record, or of a document authorized to be recorded or filed, "by copy, certified as correct in accordance with rule 902." ); Fed. R. Evid. 803(8) (creating hearsay exception for "[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency...."). However, Mr. Vail does not claim to be the custodian of records for these documents. Therefore, he may not invoke any of these exceptions to the hearsay prohibition. Plaintiffs' objection is SUSTAINED. For the purposes of this decision, it will be assumed that the notice was not timely sent.
Plaintiffs allege that the hearing clerk "did not post-mark or mail the Judicial Officer's (JO's) decision to Plaintiffs' counsel until February 28, 2008, twenty-four (24) days after the JO's decision." (FAC at ¶9.) Plaintiffs counsel declares, under penalty of perjury, that he has been representing growers and/or shippers of agricultural products before the USDA for more than twenty years. (Declaration of Brian C. Leighton ("Leighton Decl."), Doc. 20, at ¶3.) He states that he has significant experience dealing with the USDA Hearing Clerk's Office, and that Office has mailed to him, by regular mail or certified mail, pleadings and court rulings from USDA judges. (Id. ) On numerous occasions, the Hearing Clerk's Office sent decisions to him via facsimile. (Id. ) He complains, generally, that the USDA Hearing Clerk's Office is "antiquated" and has no system that permits litigants to electronically check the status of pending petitions, nor is there any way to receive electronic notice of decisions or filings. (Id. at ¶5.)
With respect to the JO decision at issue here, Mr. Leighton asserts that the certified mail allegedly sent on February 4, 2008 never arrived at his office. (Id. at ¶6.) Instead, Mr. Leighton first received the decision, bearing a post mark of February 28, 2008, by regular mail on March 4, 2008. (Id. ) However, the version of the decision he received on March 4 had been sliced into several pieces. (Id. )
Mr. Leighton also declares that the certified letter never made it to the Clovis Post Office that serves his law office. In support of this assertion, Mr. Leighton explains that he "personally visited the main Post Office for the City of Clovis... and spoke with the Postmaster who provided to me [a] document attached [as] Exhibit A... showing that at no time did USDA's certified letter ever reach the Clovis Post office...." (Doc. 20 at ¶8.) USDA correctly objects to this portion of Mr. Leighton's declaration on the ground that it is hearsay for the truth of the matters allegedly contained within the Postmaster's explanation. (Doc. 23-3 at ¶1.) USDA's objection is SUSTAINED.
In his declaration, Mr. Leighton explains that the letter was "folded twice (length wise) which made three equal parts, and was cut virtually all the way through the Clerk's cover letter and the decision at the two folds." (Leighton Decl. at ¶6.) Mr. Leighton elsewhere describes the letter's state as having been "shredded." (Doc. 19 at 6.)
But, USDA correctly argues that the method, or even the success, of service is irrelevant. The time to file this action commenced upon entry of the JO's ruling, and this action is therefore untimely. The only case to have interpreted the operative language in the AMAA is Willow Crossing Dairy Farm, Inc. v. Hardin, 327 F.Supp. 798 (W.D. Pa. 1970), in which the plaintiff similarly sought judicial review under 7 U.S.C. § 608c(15)(B). In response to a motion to dismiss for lack of jurisdiction on the grounds that the action was not timely filed, plaintiff's counsel argued that the twenty-day period should run from the date he received notice of the ruling, not the date the ruling was entered. The district court rejected the argument, reasoning:
Where statutory jurisdiction is conferred on a district court to hear appeals from an administrative agency, such action is predicated on an individual's pursuing his remedies within the bounds prescribed in the applicable statute. [Citation] Thus, in this case, where Congress mandated specific jurisdictional requirements and especially provided the time in which an appeal was to be filed, the question of whether or not the district court jurisdiction is properly invoked depends upon a resolution of the meaning of the term "entry of such ruling," as embodied in the Congressional intent.
It does not appear that our courts have been called upon to interpret this phrase in relation to the Agricultural Adjustment Act, under which this suit is brought. Since no peculiar interpretation has been placed upon the term "entry," it will be interpreted as it is normally employed. "The word is frequently used, particularly in commercial law and in practice, as referring to the act of committing to writing, or of recording in a book... and has been defined as meaning the act of making or entering a record, or a setting down in writing of particulars...." 30 C.J.S. Entry page 724. "Entry," or entering, is ordinarily synonymous with recording. It connotes a greater duty than, or additional to, that preservation which is the essence of filing." The Washington , 16 F.2d 206, 208 (C.A. 2, 1926). It is the clerical procedure of recording. Neely v. Merchants Trust Co. of Red Bank N.J., 110 F.2d 525 (C.A. 3, 1970).
The Act does not specify that the time to perfect an appeal is to run from the time of receipt of the ruling. But since it does clearly state that the twenty day period runs from the entry of that ruling which was on September 2, 1970, it is obvious according to the Act's tenor that the instant complaint was not timely filed in accordance with Congressional intent. I am accordingly precluded from gaining jurisdiction over the subject matter, and the defendant's motion to dismiss the complaint must be granted.
Id. at 800 (emphasis added)(internal citations omitted).
Similar language contained within the Longshore and Harbor Workers' Compensation Act ("LHWCA") providing for an appeal from the Benefits Review Board of the Department of Labor was similarly interpreted by the Fourth Circuit. See Mining Energy, Inc. v. Director, Office of Workers' Compensation Programs, 391 F.3d 571 (4th Cir. 2004). The LHWCA provides that a petition for review must be filed "within sixty days following the issuance of [the] Board['s] order... 33 U.S.C. 921(c)." Id. (emphasis added). The court held that it lacked jurisdiction to consider the petition because the time period began to run when the decision was issued and filed by the Board's clerk, not when the employer actually received a copy of it. Id. at 576. See also Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 44 (2d Cir. 1976) (holding that petition for review of Benefits Review Board ruling must be dismissed as untimely, even if hearing clerk made error in mailing notice to incorrect party).
The Ninth Circuit applied similar reasoning in a case involving LHWCA's sixty-day filing deadline. Stevedoring Servs. of Am. v. Director, Office of Workers' Comp. Programs, 29 F.3d 513, 516 (9th Cir. 1994). In Stevedoring, the Ninth Circuit found that the "sixty-day filing period is a jurisdictional requirement," referencing the Second Circuit's decision in Dellaventura :
In the Clerk of the Board sent a copy of Dellaventura the Board's decision to the attorney for the employer rather than to the employer. 544 F.2d at 43. The employer filed its notice of appeal after the expiration of the 60-day time period provided for in § 921(c). Id. The employer argued that the Board's decision was not "issued" until "a copy of [it] shall be sent by certified mail or served personally on all parties to the appeal and the Director" as required by the regulations. Id. (internal quotation omitted). The court noted that "[t]he rule does not say when this [notice] should be done." Id. It held "[w]e see no reason not to read 33 U.S.C. § 921(c) as meaning what it says. The policy requiring that appeals be timely taken is so strong that ministerial failures by a clerk cannot be allowed to overcome it." Id. at 44 (citations omitted). The appeal was dismissed as untimely. Id.
We agree with this analysis. "Issuance" in § 921(c) means filed with the Clerk of the Board, nothing more. Id.
USDA also points out that "[w]hen Congress has elected to require actual notice of final administrative action to commence accrual of limitations periods, it has explicitly done so." Kentucky ex rel. Cabinet for Human Resources v. Brock, 845 F.2d 117, 121 (6th Cir. 1988). Defendant points to many examples. See, e.g., 42 U.S.C. § 2000e-16(c) ("within 30 days of receipt of notice of final action taken by a department, agency, or unit... an employee... may file a civil action...."); 5 U.S.C. § 7703(b)(1) (petition to review administrative Order "must be filed within 60 days after the date the petitioner received notice of the final order or decision"); 20 U.S.C. § 1416(e)(8) (state may seek review of federal agencies' action "not later than 60 days after notice of such action"); 29 U.S.C. § 667 (state may obtain judicial review of decision regarding an occupational health plan by filing action "within thirty days following receipt of notice of such decision").
Although the language applicable in this case requires filing of an appeal "within twenty days from the date of the entry" of the underlying ruling, as opposed to LHWCA's language requiring filing within a set period of time following "issuance" of the ruling, Willow Crossing persuasively reasons why the result here should be the same as in the LHWCA cases. The "entry" of a ruling is the clerical procedure of filing, nothing more. Willow Crossing, 327 F.Supp. at 800.
B. Plaintiffs' Due Process Clause Argument.
Plaintiffs ask the Court to carve out an exception to the statutory deadline to find that it was timely filed "when considered in the context of Due Process." Plaintiff acknowledges that the Due Process Clause, alone, does not guarantee the right to appellate review, Mining Energy, 391 F.3d at 576, but cites M.L.B. v. S.J.L., 519 U.S. 102, 110-113 (1996), for the proposition that once appellate review is provided by statute, Due Process is required. Specifically, plaintiff asserts that Due Process in this case would require "overnight delivery notice, fax notice ([the] cheapest, most efficient, quickest and far less time consuming[)], or something much more than what USDA did provide in this case." (Doc. 19 at 7.)
Plaintiffs citation to M.L.B. v S.L.J. is misplaced. In that case, the Supreme Court reviewed the question of whether a State may condition appeals from trial court decrees terminating parental rights on the affected parent's ability to pay record preparation fees. The Court acknowledged that "if a full and fair trial on the merits is provided, the due process clause of the Fourteenth Amendment does not require a state to provide appellate review." 519 U.S. at 114. However, once an appeal is afforded, "it cannot be granted to some litigants and capriciously and arbitrarily denied to others without violating the equal protection clause." Id. (emphasis added.) Specifically, the Court found that "[c]hoices about marriage, family life, and the upbringing of children are among the associational rights this Court has ranked as of basic importance to our society,'" and held that the state could not deny M.L.B., because of her inability to pay, appellate review of the ruling that she was unfit to remain a parent. Id. at 107, 116. The Court further noted that this was among the "narrow category of civil cases in which the State must provide access to its judicial process without regard to a party's ability to pay court fees." Id. at 113.
There is absolutely no parallel between the circumstances in this case and those in M.L.B. The Fourth Circuit's Mining Energy decision, 391 F.3d 571, issued almost ten years after M.L.B. explicitly rejected Plaintiffs argument, finding
[no] constitutional reason why [the statute and regulation] cannot be enforced as they are written. While Mining Energy contends that permitting the sixty-day window for judicial review to expire when there has been a lack of actual notice of the Board's decision contravenes constitutional due process requirements, that contention is without merit and must be rejected. It is well-established that the due process clause, alone, guarantees no right to appellate review.
Id. at 576.
C. Little Tucker Act And Administrative Procedure Act.
In the FAC, Plaintiffs alternatively allege that the district court has jurisdiction under the APA, 5 U.S.C. §§ 702 et seq., and/or under the Little Tucker Act, 28 U.S.C. § 1346.
Plaintiffs' cannot establish independent jurisdiction under the APA. Although 5 U.S.C. § 702 waives the government's sovereign immunity for claims seeking non-monetary relief from administrative agency action, section 702 specifically limits the government's waiver of sovereign immunity by denying the courts "authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought." 5 U.S.C. § 702. Here, the statute under which Plaintiffs bring this action, 7 U.S.C. § 608c(15)(A), precludes jurisdiction (and judicial relief) if the action is not timely filed. See Berman v. United States, 264 F.3d 16, 21 (1st Cir. 2001) (holding that where statute required petition to quash IRS summons be filed within twenty days after service of summons, plaintiff could not avoid jurisdictional limitation of statute by asserting general APA jurisdiction under 5 U.S.C. § 702); see also Block v. North Dakota, 461 U.S. 273, 286 n.22 (1983) (where Quiet Title Act required suit to be filed within a specified time, 5 U.S.C. § 702 provided no waiver of the deadline; Section 702 "provides no authority to grant relief when Congress has dealt in particularity with a claim and [has] intended a specified remedy to be the exclusive remedy.'"). Id.
IV. CONCLUSION
For the reasons set forth above, Defendant's motion to dismiss is GRANTED. This result may be harsh, but the district court is not in a position to revise the scope of the applicable sovereign immunity waiver and the statutory language Congress adopted. Plaintiffs' counsel is familiar with USDA procedures, the twenty day rule, and that electronic service is not available. Although it is burdensome, it was incumbent upon counsel to ascertain the date of entry of the disputed decision.
IT IS SO ORDERED.