Congregation MacHna Shalva Zichron Zvi Dovid v. United States Department of Agriculture , 557 F. App'x 87 ( 2014 )

13-1206-cv
Congregation Machna Shalva Zichron ZVI Dovid v. U.S. Dep’t of Agric.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th
day of February, two thousand fourteen.
PRESENT:
JOSÉ A. CABRANES,
SUSAN L. CARNEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
CONGREGATION MACHNA SHALVA ZICHRON ZVI DOVID,
Plaintiff-Appellant,
v. No. 13-1206-cv
UNITED STATES DEPARTMENT OF AGRICULTURE, NEW YORK
STATE EDUCATION DEPARTMENT, FRANCES N. O’DONNELL,
Coordinator of the Child Nutrition Program, AUDREY ROWE, in
her official capacity as Administrator of the Food and Nutrition
Service, MAUREEN LAVARE, in her official capacity as Hearing Officer,
Defendants-Appellees.
_____________________________________
FOR PLAINTIFF: Y. DAVID SCHARF, Morrison Cohen LLP,
New York, NY.
FOR FEDERAL DEFENDANTS: BENJAMIN H. TORRANCE, Assistant United
States Attorney (Preet Bharara, United States
Attorney for the Southern District of New
York, Emily E. Daughtry, Assistant United
States Attorney, on the brief), New York, NY.
FOR STATE DEFENDANTS: VALERIE FIGUERDO, Assistant Solicitor
General (Eric T. Schneiderman, Attorney
General of the State of New York, Barbara D.
Underwood, Solicitor General, Steven C. Wu,
Deputy Solicitor General, on the brief), New
York, NY.
Appeal from a March 1, 2013 judgment of the United States District Court for the Southern
District of New York (Paul A. Crotty, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that judgment of the District Court is AFFIRMED.
Plaintiff Congregation Machna Shalva Zichron Zvi Dovid (“Shalva”) appeals from a
judgment granting (1) summary judgment in favor of defendants United States Department of
Agriculture and Audrey Rowe (collectively, “USDA” or “federal defendants”), and (2) a motion to
dismiss filed by defendants Maureen Lavare, Frances O’Donnell, and the New York State Education
Department (collectively, “state defendants”). We assume the parties’ familiarity with the underlying
facts and the procedural history of the case, to which we refer only as necessary to explain our
decision to affirm.
BACKGROUND
As part of the National School Lunch Act, Congress created the Summer Food Service
Program, 42 U.S.C. § 1761, which authorizes the USDA to provide states with grants to conduct
food service programs for children during the summer, 7 C.F.R. § 225.1. State agencies are
responsible for administering the programs by funneling the grants to nonprofit service institutions,
42 U.S.C. § 1761(a)(1)(D), referred to as “sponsors.”
From 2005 through 2009, Shalva operated a summer camp that participated in the summer
food program. In May 2010, Shalva submitted an application to the New York State Education
Department (the “NYSED”) seeking to participate in the 2010 summer program. On October 5,
2010, the NYSED denied Shalva’s application based on the failure to satisfy criteria contained in
USDA regulation 7 C.F.R. § 225.11(c). Shalva brought suit contending that 7 C.F.R. § 225.11(c) was
invalid, and that the denial violated its due process rights. On March 1, 2013, the District Court
entered judgment dismissing Shalva’s claims. This timely appeal followed.
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DISCUSSION
We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6),
construing the complaint liberally, accepting all factual allegations in the complaint as true, and
drawing all reasonable inferences in the plaintiff’s favor. See Chambers v. Time Warner, Inc., 282 F.3d
147, 152 (2d Cir. 2002). The complaint must plead “enough facts to state a claim to relief that is
plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and “allow[ ] the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Although all allegations contained in the complaint are assumed to
be true, this tenet is “inapplicable to legal conclusions.” Id.
We also review a grant of summary judgment de novo, viewing the facts “in the light most
favorable to the non-moving party and draw[ing] all reasonable inferences in that party’s favor.”
Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 271 (2d Cir. 2011). Summary judgment is
appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Where the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted).
I
Shalva seeks to enjoin enforcement of 7 C.F.R. § 225.11(c) principally on the basis that the
regulation violates the requirements of the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et
seq. We analyze Shalva’s APA claim under the familiar two-step framework of Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). After de novo review, we conclude that the
regulation at issue withstands APA scrutiny substantially for the reasons stated by the District Court
in its March 1, 2013 opinion. Namely, it is unclear whether a sponsor that satisfies the statutory
criteria of 42 U.S.C. § 1761(a)(3) automatically has a right to participate in the program or whether
those criteria are mere baseline requirements. Moreover, the regulation is neither arbitrary nor
capricious because the USDA has justifiably determined that broad-based criteria promote sponsor
accountability.
Shalva also claims that the federal defendants failed to comply with the requirements of the
Regulatory Flexibility Act (“RFA”), 5 U.S.C. § 601 et seq., by not conducting a “regulatory flexibility
analysis” and reviewing the regulation periodically. See 5 U.S.C. §§ 604(a), 610(a). Shalva’s claim,
however, is time-barred by the one-year statute of limitations on judicial review established in
Section 611 of the RFA. Because Shalva’s claim is procedural in nature, we reject Shalva’s argument
that the statute of limitations should be inapplicable to its claim. See, e.g., Sai Kwan Wong v. Doar, 571
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F.3d 247, 263 (2d Cir. 2009); Schiller v. Tower Semiconductor Ltd., 449 F.3d 286, 293-94 (2d Cir. 2006).
Accordingly, the District Court properly dismissed the claims against the federal defendants.1
II
Shalva asserts claims against the state defendants under 42 U.S.C. § 1983 for alleged
violations of its Fourteenth Amendment due process rights. In Edelman v. Jordan, 415 U.S. 651
(1975), the Supreme Court stated that “a suit by private parties seeking to impose a liability which
must be paid from public funds in the state treasury is barred by the Eleventh Amendment.” Id. at
663. After de novo review, we agree with the District Court that any judgment on Shalva’s section
1983 claims might require the NYSED, a state agency, to provide the funds Shalva expended in
running the 2010 program. Accordingly, sovereign immunity bars such claims.
Shalva also asserts a claim under Article 78 of New York’s Civil Practice Laws and Rules,
alleging that the manner in which the NYSED denied its application was arbitrary and capricious.
To confer federal question jurisdiction, this claim must involve a “substantial [federal issue],
indicating a serious federal interest in claiming the advantages thought to be inherent in a federal
forum.” Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 313 (2005). As the
District Court rightly concluded, the determination at issue here is a fact-specific application of the
regulations to Shalva that does not implicate the validity of the regulations themselves, or have any
other broader effect on federal interests. Accordingly, the District Court properly dismissed this
claim without prejudice to pursuing such a claim in an Article 78 proceeding.
CONCLUSION
We have considered all of the arguments raised by Shalva on appeal and find them to be
without merit. For the reasons stated above, we AFFIRM the District Court’s March 1, 2013
judgment.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
1Shalva also claims that the District Court erred in declining to permit Shalva to take discovery or supplement
the administrative record. However, the District Court’s ruling, which is reviewed for abuse of discretion, was proper
because the existing administrative record provided a sufficient basis to decide this case. See Camp v. Pitts, 411 U.S. 138,
142 (1973).
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