Anderson v. USDA et al.

Filing 10

ORDER denying plaintiff's 2 Motion for TRO, signed by Judge John A. Mendez on 10/7/14. This order does not affect Plaintiff's request for a preliminary injunction, and the parties may set a hearing date in compliance with the Local Rules. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EZELL ANDERSON, JR. Doing Business
As, Mom’s Choice Meats,

No.

2:14-cv-02307 JAM CKD

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Plaintiff,
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v.
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UNITED STATES OF AMERICA; KEVIN
CONCANNON, Undersecretary for Food,
Nutrition and Consumer Services;
UNITED STATES DEPARTMNT OF
AGRICULTURE; JOCELYN KEH, Section
Chief, Supplemental Nutrition
Assistance Program, Food and
Nutrition Service, United States
Department of Agriculture, and
their successors in office,

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ORDER DENYING PLAINTIFF’S
APPLICATION FOR A
TEMPORARY RESTRAINING
ORDER

Defendants.

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This matter is before the Court on Plaintiff Ezell Anderson,

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Jr.’s (“Plaintiff”) Ex Parte Motion for a Temporary Restraining

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Order (“TRO”) (Doc. #2). 1

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behalf of the United States Department of Agriculture

Defendant United States of America, on

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). No hearing was scheduled.
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(“Defendant” or “USDA”), filed an opposition (Doc. #9).

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reasons stated below, Plaintiff’s application for a TRO is

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DENIED.

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For the

OPINION

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A.

Legal Standard

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Federal Rule of Civil Procedure 65 provides authority to

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issue either preliminary injunctions or temporary restraining

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orders.

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demonstrate that it is “[1] likely to succeed on the merits,

A plaintiff seeking a preliminary injunction must

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[2] that he is likely to suffer irreparable harm in the absence

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of preliminary relief, [3] that the balance of equities tips in

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his favor, and [4] that an injunction is in the public interest.”

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Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052

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(9th Cir. 2009) (quoting Winter v. Natural Res. Def. Council, 129

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S. Ct. 365, 374 (2008)).

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restraining order are the same.

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John D. Brush & Co., 240 F.3d 832, 839 n. 7 (9th Cir. 2001).

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TRO is an emergency measure, intended to preserve the status quo

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pending a fuller hearing on the injunctive relief requested, and

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the irreparable harm must therefore be clearly immediate.

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R. Civ. Proc. 65(b)(1).

The requirements for a temporary
Stuhlbarg Int’l Sales Co. v.
A

Fed.

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B.

Analysis

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Having reviewed Plaintiff’s application for a TRO, the Court

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concludes that Plaintiff has failed to establish a likelihood of

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success on the merits.

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process rights have been violated, because “after the initial

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disqualification Mom’s Choice ha[d] to immediately cease

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transacting EBT transactions without recourse; the regulations

Plaintiff alleges that his procedural due

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prohibit a stay of a disqualification due to trafficking pending

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both administrative and judicial review; and the rules and

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regulations bar Mom’s Choice from obtaining compensation for the

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period during a wrongful disqualification.”

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TRO at 2.

This argument has been foreclosed by the Ninth Circuit.

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Kim v. United States, the Ninth Circuit considered a nearly

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identical case, in which the USDA had permanently disqualified

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the plaintiff from participating in the food stamp program,

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following a charge of trafficking.

In

Kim v. United States, 121

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F.3d 1269, 1271 (9th Cir. 1997).

The Ninth Circuit rejected

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Plaintiff’s procedural due process argument: “Nor were Kim’s

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procedural due process rights infringed.

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which the existence of a violation is examined afresh, and the

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parties are not limited in their arguments to the contents of the

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administrative record, satisfies the strictures of procedural due

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process.”

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controlling decision in Kim clearly precludes Plaintiff from

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establishing a likelihood of success on the merits.

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reason, Plaintiff’s application for a TRO is DENIED.

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does not affect Plaintiff’s request for a preliminary injunction,

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and the parties may set a hearing date in compliance with the

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Local Rules.

Kim, 121 F.3d at 1274.

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IT IS SO ORDERED.

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Dated: October 7, 2014

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A trial de novo, in

The Ninth Circuit’s

For this
This order