G. et al v. United States of America et al

Filing 9

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/21/2016 RECOMMENDING that the 4 Motion for Temporary Restraining Order be Denied. Referred to Judge Kimberly J. Mueller; Objections due within 14 days after being served with these findings and recommendations. (Jackson, T)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15

J.G., a minor, by and through his mother
and Guardian Ad Litem, BRIDGETT M.
MCCULLOUGH, J.L., a minor, by and
through his Guardian Ad Litem,
ANTOINETTE EDMONDS, and EZELL
ANDERSON, JR. d/b/a Mom’s Choice
Meats, and Put Meat On The Table
(PMOTT),

v.

17

19
20
21
22
23

FINDINGS AND RECOMMENDATIONS

Plaintiffs,

16

18

No. 2:16-cv-1476-KJM-EFB PS

UNITED STATES OF AMERICA; TOM
VILSACK, Secretary, United States
Department of Agriculture; KEVIN
CONCANNO, Undersecretary for Food,
Nutrition and Consumer Services, United
States Department of Agriculture;
JOCELYN KEH, Section Chief,
Supplemental Nutrition Assistance
Program, Food and Nutrition Service,
United States Department of Agriculture,
and their successors in office,
Defendants.

24
25
26

/////

27

/////

28

/////
1

1

Ezell Anderson, one of the named plaintiffs in this action, moves for a temporary

2

restraining order. ECF No. 4.1 For the following reasons, it is recommended that the motion be

3

denied.

4

A.

Legal Standard

5

A temporary restraining order may be issued upon a showing “that immediate and

6

irreparable injury, loss, or damage will result to the movant before the adverse party can be heard

7

in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The purpose of such an order is to preserve the

8

status quo and to prevent irreparable harm “just so long as is necessary to hold a hearing, and no

9

longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439 (1974).

10

“The standards for granting a temporary restraining order and a preliminary injunction are

11

identical.” Haw. County Green Party v. Clinton, 980 F. Supp. 1160, 1164 (D. Haw. 1997); cf.

12

Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001)

13

(observing that an analysis of a preliminary injunction is “substantially identical” to an analysis of

14

a temporary restraining order).

15

A preliminary injunction will not issue unless necessary to prevent threatened injury that

16

would impair the court’s ability to grant effective relief in a pending action. Sierra On-Line, Inc.

17

v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871

18

F.2d 863 (9th Cir. 1964). Such an order represents the exercise of a far reaching power that

19

should not be used unless the circumstances clearly warrant it. Dymo Indus. V. Tapeprinter, Inc.,

20

326 F.2d 141, 143 (9th Cir. 1964).

21

To establish the need for preliminary injunctive relief, a party must demonstrate “that he is

22

likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of

23

preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the

24

public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v.

25

Natural Res. Def. Council, Inc., 555 U.S. 7 (2008). In the Ninth Circuit, courts employ a “sliding

26

scale” approach to analyzing requests for preliminary injunctions. Alliance for the Wild Rockies

27
28

1

This case, in which plaintiff Anderson is proceeding in propria persona, was referred to
the undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1).
2

1

v. Cottrell, 622 F.3d 1045, 1050 (9th Cir. 2010). Under that approach, courts balance the

2

elements of the preliminary injunction test, so that a stronger showing of one element may offset

3

a weaker showing of another. Id. The Ninth Circuit has held that this approach continued to be

4

valid after Winters. Id. Thus, “‘serious questions going to the merits,’ and a hardship balance

5

that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two

6

elements of the Winter test are also met.” Id.

7

A preliminary injunction can be either prohibitory or mandatory. Marlyn Nutraceuticals,

8

Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878 (9th Cir. 2009). A prohibitory injunction

9

prohibits a party from taking action and thereby preserves the status quo pending a determination

10

on the merits of the case. Id. A mandatory injunction, on the other hand, requires a party to take

11

action and thus “goes well beyond simply maintaining the status quo pendente lite.” Id. at 879

12

(internal quotation marks omitted). Mandatory injunctions are “particularly disfavored” and may

13

not be granted “unless extreme or very serious damage will result.” Id. Further, a court should

14

not enter a mandatory injunction in doubtful cases or where the injury complained of is

15

compensable by monetary damages. Id.

16

B.

17

Discussion
Anderson seeks to restrain enforcement of a decision by the United States Department of

18

Agriculture, Food and Nutrition Assistance Program, permanently disqualifying his business,

19

Mom’s Choice Meats, from participation in the Supplemental Nutrition Assistance Program

20

(“SNAP”)2 based on a finding that Mom’s Choice Meats was trafficking in food stamp benefits

21

and has failed to establish and implement an effective compliance policy and program to prevent

22

such violations.3 ECF No. 4.; see ECF No. 1 at 113-114 (Ex. O). He alleges in his complaint that

23

plaintiffs J.G. and J.L are members of a family receiving assistance through SNAP and that they

24

are being harmed by the exclusion of Anderson from participation in the program. ECF No. 1 at

25
2

26
27
28

SNAP was established under the Food Stamp Act and is operated by the Food &
Nutrition Service (FNS) of the United States Department of Agriculture. 7 U.S.C. §§ 2011-2036.
3

Anderson is the owner of Mom’s Choice Meats, which was authorized to participate in
the Supplemental Nutrition Assistance Program as a meat specialty store. ECF No. 1 at 8, 63.
3

1

4. He asserts that through his store he has created a program entitled Put Meat on the Table

2

(“PMOTT”). Id. at 2, 65. As he explains it, the purpose of his PMOTT program is to provide a

3

way for SNAP participants who had exhausted their monthly benefits to still be able to purchase

4

meat prior to receiving their next benefit distribution. Id. at 1, 55-57 (Ex. A).

5

Anderson alleges that his PMOTT’s services are critical to the minor plaintiffs, “but

6

because of Defendants’ unprecedented, and unlawful, action against Mom’s Choice, PMOTT

7

services ceased being delivered and available effective, September 10, 2014.” Id. at 5. On that

8

date, Mom’s Choice Meat was permanently disqualified from participating in SNAP based on a

9

charge of trafficking (exchanging cash for food stamp benefits). Id. at 13. Anderson argues that

10

the government should have known that the disqualification “would bring the permanent end to

11

PMOTT’s monthly relief to Plaintiffs Children’s household, but made no effort to notify

12

Plaintiffs Children’s household of the impending calamity.” Id.

13

Although the complaint references a variety of claims,4 his motion for a temporary

14

restraining order is focused primarily on his due process claim. He argues that his due process

15

rights were violated because SNAP’s statutory and regulatory framework do not permit a stay of

16

the decision to permanently disqualify his participation in SNAP pending judicial review. ECF

17

No. 4 at 15. Anderson now seeks an injunction staying the decision to disqualify his participation

18

in SNAP pending this litigation.

19

Anderson previously raised this argument in a prior motion for a temporary restraining

20

order he filed in a separate case that is pending before this court. See Anderson v. United States

21

of America, 2:14-cv-2307-JAM-CKD-PS, ECF No. 2 at 2. As Anderson was previously informed

22

by the decision entered in that case, his argument is foreclosed by the U.S. Court of Appeals for

23

the Ninth Circuit’s holding in Kim v. United States, 121 F.3d 1269 (9th Cir. 1997). See

24

Anderson, 2:14-cv-2307-JAM-CKD-PA, ECF No. 10. In Kim, the Ninth Circuit rejected the

25

plaintiff’s contention that the USDA violated his due process rights by permanently disqualifying

26
27
28

4

Andersons’ complaint purports to allege the following claims: (1) violation of plaintiffs’
due process; (2) intentional infliction of emotional distress; (3) “arbitrary and capricious”; (4)
corruption; (5) discrimination – Race and Color; (6) and “irreparable injuries.” Id. at 23-45.
4

1

him from participation in the food stamp program following a charge of trafficking. 121 F.3d at

2

1274. The court explained that “[a] trial de novo, in which the existence of a violation is

3

examined afresh, and the parties are not limited in their arguments to the contents of the

4

administrative record, satisfies the strictures of procedural due process.” Id. Thus, Ninth Circuit

5

precedent is dispositive of Anderson’s due process contention here and he fails to show a

6

likelihood of success on the merits.

7

Moreover, Anderson is unlikely to succeed on any of his other claims. All of his claims

8

are predicated on his contention that the government wrongfully disqualified his participation in

9

SNAP, which is precisely the challenge he advances in Anderson v. United States of America,

10

2:14-cv-2307-JAM-CKD-PS. In that case, Magistrate Judge Delaney recommended that

11

summary judgment be granted in the government’s favor, finding no genuine dispute that

12

permanent disqualification was appropriate.5 In doing so she relied on the Ninth Circuit’s ruling

13

in Kim, which is also controlling here. See Kim, 121 F.3d at 1274 (finding that a store owner

14

could be “permanently disqualified from the food stamp program when, unknown to him, one of

15

his employees trafficked in food stamps.”). Thus, Anderson is unlikely to succeed on the merits

16

of this case.

17
18

Accordingly, it is hereby RECOMMENDED that Anderson’s motion for a temporary
restraining order be denied.

19

These findings and recommendations are submitted to the United States District Judge

20

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

21

after being served with these findings and recommendations, any party may file written

22

objections with the court and serve a copy on all parties. Such a document should be captioned

23

“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

24

/////

25

/////

26

/////

27
28

5

Those findings and recommendation are pending before Judge Mendez.
5

1

within the specified time may waive the right to appeal the District Court’s order. Turner v.

2

Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

3

DATED: December 21, 2016.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6