United States District Court, N.D. Ohio, Western Division
G. Carr Sr. U.S. District Judge.
an appeal from an administrative decision by the Food and
Nutrition Services (FNS) of the United States Department of
Agriculture (USDA) arising under The Food Stamp Act (The
Act), 7 U.S.C. § 2011 et seq.
plaintiff, Zuhair Al-Sharari, owns a corporation, Zuhair of
Toledo, Inc. (d/b/a Beer Dock), which sells beer, wine, and
other items in Toledo, Ohio. On May 29, 2018, FNS
disqualified Al-Sharari and his businesses from participation
in the Supplemental Nutrition Assistance Program (SNAP) for
three years. That disqualification resulted from a 2017
decision by the Ohio Department of Health (ODH) disqualifying
the Beer Dock from participating in the state equivalent of
SNAP, known as Special Supplemental Nutrition Program for
Women, Infants, and Children, commonly known as WIC.
contends that FNS should have allowed him to pay a civil
monetary penalty (CMP) in lieu of the three-year
disqualification. He further argues that the disqualification
violated his Fifth Amendment due process rights by, inter
alia, denying access to the evidence against him; using
“inaccurate and unsworn” evidence; not holding a
hearing; and denying a “meaningful adjudicative
process.” (Doc. 1 at 4, ¶15.)
is proper under 28 U.S.C. § 1331.
is the defendants' Fed.R.Civ.P. 12(b)(1) and (6) motion
to dismiss. (Doc. 6). For the following reasons, I grant the
motion under Rule 12(b)(6).
FNS, the USDA administers a program of aiding low-income and
other vulnerable persons through an allotment of funds,
previously known as food stamps, to increase their access to
a more nutritious and, thus, healthy diet. See 7
U.S.C. § 2013; 7 C.F.R. §§ 246 & 271.
Retailers can fill out an application to accept SNAP food
stamps in their stores. Approved retailers must then follow
both statute and FNS regulations to remain authorized to
accept SNAP food stamps.
retailers violate either statute or regulation FNS may, after
an investigation, directly disqualify them. 7 U.S.C. §
2021; 7 C.F.R. § 278.6. FNS can also impose
“reciprocal disqualification” on a retailer where
a state agency, such as ODH, has disqualified the retailer
from participating in the WIC program. 7 U.S.C. §
2021(g)(1). Reciprocal disqualification automatically
follows, as a matter of law, the initial WIC
disqualification. (Doc. 6 at 6). Once the state informs FNS
about its disqualification decision, FNS must disqualify the
retailer from SNAP for the same amount of time as the
state-imposed disqualification. 7 U.S.C. §
has discretion to impose a civil money penalty (CMP) in lieu
of such disqualification. To exercise this option, the agency
must find that disqualification would cause “hardship
to participating households.” 7 C.F.R. § 278.6(a).
Under 7 C.F.R. § 278.6(f)(1) FNS uses a two-factor test
to determine hardship, and thus eligibility for a CMP: 1) the
retailer must sell “a substantial variety of staple
food items”; and 2) disqualification would cause
hardship to SNAP households because there is no other
authorized retail food store in the area selling at
comparable prices as large a variety of staple food
The Beer Dock and Its Disqualification from WIC and
disqualified the Beer Dock from WIC in September 2017.
receipt of notice of the disqualification, FNS informed
Al-Sharari in October 2017 that, as a result of the ODH
decision, a reciprocal disqualification from SNAP (or a CMP)
could follow. Al-Sharari replied, via counsel, submitting
additional documents for FNS Retailer Operations Division
(ROD) to consider before it determined the ultimate sanction
it would impose. (Doc. 1 at 9).
December 2017, FNS notified Al-Sharari that he was not
eligible for a hardship-based CMP in lieu of a
disqualification, and accordingly the three-year reciprocal
disqualification from SNAP would stand. (Id.).
then filed an administrative appeal of ROD's denial of
the hardship CMP, requesting that the agency take another
look at the decision to deny a CMP. (Id.).
Al-Sharari provided “Additional Documentation in
Support of Request for Administrative Review.”
(Id. at 11). He argued that the agency had: 1)
applied the wrong standard of review; and 2) failed to make a
required factual finding that nearby SNAP authorized
retailers sold “as large a variety” of required
food items at comparable prices. In May 2018, FNS upheld the
decision to impose reciprocal disqualification rather than a
CMP. (Id. at 13).
suit under 7 U.S.C. § 2023 Al-Sharari asserts two
claims. First, he claims FNS should have allowed him to pay a
CMP in lieu of suspension. Second, he contends the agency
violated his procedural-due-process rights by, inter
alia: 1) not letting him see the evidence against him;
2) relying on inaccurate, unsworn factual allegations; and 3)
not holding a hearing. (Doc. 1 at ¶¶12, 15). The
government seeks dismissal for want of jurisdiction and
failure to state a claim.
jurisdictional challenge under Fed.R.Civ.P. 12(b)(1) can
raise either “a facial attack or a factual
attack.” Wayside Church v. Van Buren Cnty.,
847 F.3d 812, 817 (6th Cir. 2017).
facial attack questions “the sufficiency of the
pleading, ” while “a factual attack ... raises a
factual controversy requiring the district court to weigh the
conflicting evidence to arrive at the factual predicate that
subject-matter [jurisdiction] does or does not exist.”
the government asserts a facial challenge: namely, 7 U.S.C.
§ 2021(g)(2)(C) precludes judicial review. (Doc. 6 at
6). Accordingly, just as I do with Rule 12(b)(6) motions, in
considering the government's jurisdictional arguments
here I “take[ ] the allegations in the complaint as