                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0238n.06

                                            No. 13-1759

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                  Mar 31, 2014
KING COLE FOODS, INC., et al.,                           )                    DEBORAH S. HUNT, Clerk
                                                         )
       Plaintiffs-Appellants,                            )
                                                         )    ON APPEAL FROM THE UNITED
v.                                                       )    STATES DISTRICT COURT FOR
                                                         )    THE EASTERN DISTRICT OF
UNITED STATES OF AMERICA, et al.,                        )    MICHIGAN
                                                         )
       Defendants-Appellees.                             )


       BEFORE: BOGGS and KETHLEDGE, Circuit Judges; RESTANI, Judge.*


       PER CURIAM. King Cole Foods, Inc. and Salam Sam Manni, its owner and president

(collectively, “Plaintiffs”), appeal the district court’s judgment dismissing their civil complaint.

       In September 2011, federal agents executed search warrants at King Cole Foods and its

bank based on suspicion that store employees had violated regulations relating to the

Supplemental Nutrition Assistance Program (SNAP).             The agents seized SNAP payment

processing equipment, currency, and bank account proceeds. Following the seizure, the United

States Department of Agriculture Food and Nutrition Service (FNS) issued a charge letter to

King Cole Foods, informing it that it may be permanently disqualified from accepting SNAP

benefits. Plaintiffs requested a civil monetary penalty in lieu of permanent disqualification, but

the FNS denied that request and permanently disqualified King Cole Foods from accepting

SNAP benefits. Plaintiffs unsuccessfully sought further administrative relief.

       *
         The Honorable Jane A. Restani, Judge for the United States Court of International Trade,
sitting by designation.
No. 13-1759, King Cole Foods, Inc. v. United States

          Plaintiffs filed a complaint in the district court, alleging, among other things, that

imposition of the permanent disqualification was improper, that certain SNAP regulations are

unconstitutionally vague, and that the FNS’s actions violated their Fifth and Eighth Amendment

rights. The district court granted the defendants’ motion to dismiss, concluding that it lacked

jurisdiction to review the FNS’s choice of sanction, that the challenged SNAP regulations are not

unconstitutionally vague, and that Plaintiffs failed to allege viable Fifth and Eighth Amendment

claims.

          On appeal, Plaintiffs argue that the district court erred by concluding that it lacked

jurisdiction to review the FNS’s choice of sanction and by dismissing their Fifth Amendment,

Eighth Amendment, and vagueness claims. We review de novo a district court’s decision

regarding subject-matter jurisdiction. Cleveland Hous. Renewal Project v. Deutsche Bank Trust

Co., 621 F.3d 554, 559 (6th Cir. 2010). We likewise review de novo a district court’s decision to

grant a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Jasinski v. Tyler,

729 F.3d 531, 538 (6th Cir. 2013). To avoid dismissal, a plaintiff must allege facts that are

sufficient to state a claim to relief that is plausible on its face. Id. In reviewing a motion to

dismiss, we accept as true the factual allegations in the complaint and construe the complaint in

the light most favorable to the plaintiff. Id.

          Plaintiffs first argue that the district court erred by concluding that it lacked jurisdiction

to review the FNS’s choice of sanction. As Plaintiffs concede, however, we have previously

held that the district court lacks jurisdiction to review the severity of the sanction, see Bakal

Bros. v. United States, 105 F.3d 1085, 1088–89 (6th Cir. 1997); Goldstein v. United States,

9 F.3d 521, 524 (6th Cir. 1993), and this panel is bound by that determination, see United States

v. Mateen, 739 F.3d 300, 305 (6th Cir. 2014).




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No. 13-1759, King Cole Foods, Inc. v. United States

       Plaintiffs next argue that the district court erred by dismissing their Fifth Amendment

claim because they adequately alleged that the FNS denied them due process in connection with

the decision to permanently disqualify them from accepting SNAP benefits. The district court

properly dismissed this claim because the allegations in the complaint did not demonstrate that

Plaintiffs were denied notice and an opportunity to be heard. See Flaim v. Med. Coll. of Ohio,

418 F.3d 629, 634 (6th Cir. 2005).

       To the extent that Plaintiffs argue that the seizure of their property constituted a “taking”

under the Fifth Amendment, dismissal of this claim was proper because the property was seized

pursuant to a lawful warrant during an investigation into possible violations of the law. See

Johnson v. Manitowoc Cnty., 635 F.3d 331, 336 (7th Cir. 2011); Bennis v. Michigan, 516 U.S.

442, 452 (1996).

       Plaintiffs next argue that the district court erred by dismissing their Eighth Amendment

claim because their permanent disqualification from processing SNAP benefits constituted an

excessive fine. The Eighth Amendment states that, “[e]xcessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII.

The Excessive Fines Clause “limits the government’s power to extract payments, whether in cash

or in kind, as punishment for some offense.” United States v. Bajakajian, 524 U.S. 321, 328

(1998) (citation and internal quotation marks omitted). The Plaintiffs’ claim fails under the

Eighth Amendment because a “fine” as understood in this context is “a payment to a sovereign

as punishment for some offense,” not the loss of an administratively granted privilege to process

third-party federal benefits. Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S.

257, 265 (1989).

       Finally, Plaintiffs argue that the district court erred by dismissing their vagueness claim

because the regulations set forth in 7 C.F.R. § 278.6(a) and (f)(1) are ambiguous concerning


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No. 13-1759, King Cole Foods, Inc. v. United States

when the FNS may impose a monetary penalty in lieu of a disqualification on the basis of

hardship to SNAP households. The district court properly dismissed this claim because there is

no ambiguity in the challenged regulations. Rather, they make clear that a finding of hardship to

SNAP households permits imposition of a monetary penalty in lieu of a temporary

disqualification, but not in lieu of a permanent disqualification.

       Accordingly, we affirm the district court’s judgment.




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