Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

K&D Express, Inc. v. United States

United States District Court, E.D. Michigan, Southern Division

June 20, 2019

K&D EXPRESS INC, Plaintiff,
v.
UNITED STATES OF AMERICA, DEPARTMENT OF AGRICULTURE, FOOD AND NUTRITION SERVICE, Defendant.

          OPINION AND ORDER DENYING PLAINTIFF'S EX-PARTE EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION [6]

          STEPHEN J. MURPHY, III United States District Judge

         On May 17, 2019, Plaintiff K&D Express, Inc. ("Bellagio")[1] filed a complaint against the United States Department of Agriculture ("USDA") for actions taken by the USDA's Food and Nutrition Service ("FNS") regarding Plaintiff's qualification for the Supplemental Nutrition Assistance Program ("SNAP"). ECF 1. On June 13, 2019, Plaintiff filed a motion for preliminary injunction and for a temporary restraining order. ECF 6.[2] The Court has reviewed the briefs and finds that a hearing is unnecessary. E.D. Mich. LR 7.1(f). For the reasons below, the Court will deny the motion.

         BACKGROUND

         I. Statutory and Regulatory Framework

         The Food and Nutrition Act of 2008, the Food Stamp Act, and their related regulations provide the legal background for Bellagio's complaint. Stores may apply to be authorized SNAP retailers, which allows them to receive food stamps as payment. 7 C.F.R. § 278.1(a). FNS must withdraw a retail store's authorization as a SNAP retailer if the store "fails to meet the requirements for eligibility under Criterion A or B." 7 C.F.R. § 278.1(1)(1)(iii).

         Criterion A requires a store to "[o]ffer for sale, on a continuous basis, a variety of qualifying foods in each of the four categories of staple foods as defined in [the regulations], including perishable foods in at least three of the categories." 7 C.F.R. § 278.1(b)(1)(i)(A); see also 7 C.F.R. § 278.1(b)(1)(ii)(A)-(C). Criterion B requires a store to "have more than 50 percent of [its] total gross retail sales . . . in staple foods." 7 C.F.R. § 278.1(b)(1)(i)(A); see also 7 C.F.R. § 278.1(b)(1)(iii).

         Even if a store fails to meet Criterion A or Criterion B, it may still retain its SNAP authorization. The FNS must "consider whether the applicant firm is located in an area with significantly limited access to food." 7 C.F.R. § 278.1(b)(6). The FNS may consider, but is not limited to, certain enumerated factors when deciding whether a store qualifies for the "Need for Access" exception. Id.

         Prior to making a reauthorization decision, a specified government agent must "visit[] the store . . . for the purpose of determining whether the store . . . should be approved or reauthorized." 7 U.S.C. § 2018(a)(1)(D). If a store's reauthorization application is denied for failing to meet Criterion A or Criterion B it is not "eligible to submit a new application for authorization in the program for a minimum period of six months from the effective date of the denial." 7 C.F.R. § 278.1(k)(2). A denial of a store's reauthorization application is "subject to administrative review." 7 C.F.R. § 278.1(p); see also 7 U.S.C. § 2023. A store may seek judicial review of the agency's final determination. 7 U.S.C. § 2023(a)(13).

         II. Factual Background

         On October 23, 2018, Bellagio applied for reauthorization. ECF 6, PgID 47 (administrative decision recounting facts). On November 28, 2018, [3] an FNS officer visited Bellagio and "conducted an on-site visit to [the] store to determine" Bellagio's eligibility to participate as an authorized SNAP retailer. ECF 1, PgID 3. On February 13, 2019, the FNS withdrew Bellagio's authorization as a SNAP retailer because it "ha[d] not demonstrated that it meets either Criterion A or Criterion B." Id. at 10. On February 25, 2019, Bellagio submitted a request for review of the denial of reauthorization. Id. at 13-15. Bellagio alleges that one month later it provided the USDA with more than one hundred pages of invoices for additional food items. Id. at 3. On April 24, 2019, the USDA issued its final decision upholding the denial of Bellagio's reauthorization. Id. at 3, 17-26.

         Bellagio filed its complaint and sought judicial review of the USDA's final agency action because Bellagio alleges that the USDA violated due process.[4] ECF 1, PgID 5-6.

         LEGAL STANDARD

         I. Standard for Temporary Restraining Order and Preliminary Injunction

         A federal district court "may issue a temporary restraining order without written or oral notice to the adverse party" only if two conditions are met: (1) specific facts in a verified complaint "show that immediate and irreparable injury, loss, or damage will result to the movant" before a hearing can be held; and (2) "the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required." Fed.R.Civ.P. 65(b)(1). A federal district ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.