BFMM Company, LLC v. United States

USCA11 Case: 22-11754 Document: 33-1 Date Filed: 05/19/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11754
Non-Argument Calendar
____________________
BFMM COMPANY, LLC,
a Florida limited liability company,
BRUNO MICELI,
an Individual,
Plaintiffs-Appellants,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
____________________
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2 Opinion of the Court 22-11754
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:21-cv-60617-AHS
____________________
Before NEWSOM, GRANT, and BRASHER, Circuit Judges.
PER CURIAM:
The U.S. Department of Agriculture’s Food and Nutrition
Service, which administers the Supplemental Nutrition Assistance
Program (SNAP), permanently disqualified BFMM Company,
LLC, and its sole owner, Bruno Miceli, from participation in the
program in 2015 after it found that they had illegally trafficked ben-
efits. BFMM and Miceli sued to contest the disqualification, but the
district court granted summary judgment to the government.
We requested supplemental briefing on the question
whether this matter became moot following BFMM’s dissolution
in 2019. After careful review, we conclude that the appeal is moot
as to both BFMM and Miceli, and that Miceli lacks standing to con-
test any imagined future enforcement. Accordingly, we DISMISS
the case for lack of subject-matter jurisdiction.
I
“The mootness requirement―as derived from the Consti-
tution’s case-or-controversy limitation―‘goes to the heart of our
constitutional doctrine of the separation of powers and the proper
role of the judiciary.’” Djadju v. Vega, 32 F.4th 1102, 1108 (11th Cir.
2022) (quoting Troiano v. Supervisor of Elections in Palm Beach Cnty.,
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22-11754 Opinion of the Court 3
Fla., 382 F.3d 1276, 1282 (11th Cir. 2004)). “To qualify as a case fit
for federal-court adjudication, ‘an actual controversy must be ex-
tant at all stages of review.’” Arizonans for Off. Eng. v. Arizona, 520
U.S. 43, 67 (1997) (quoting Preiser v. Newkirk, 422 U.S. 395, 401
(1975)). A case is moot when “no justiciable controversy is pre-
sented,” Flast v. Cohen, 392 U.S. 83, 95 (1968), or when a court can-
not afford “effectual relief,” Campbell-Ewald Co. v. Gomez, 577 U.S.
153, 161 (2016).
All seem to agree that this case is moot as to BFMM, which
was voluntarily dissolved in 2019. Detail by FEI/EIN Number, Fla.
Dep’t of State Div. of Corps., https://perma.cc/4GKL-6S97.
BFMM has conceded that “the Court cannot reinstate the SNAP
license to a store that doesn’t exist,” so no effectual relief is availa-
ble. Supp. Br. of Appellants at 6.
The case is also moot vis-à-vis Miceli, although explaining
why requires a bit more doing. Miceli first contends that the case
might be moot with respect to him, but only because, he says, the
statutes and regulations governing SNAP benefits “clearly limit dis-
qualifications” to firms and stores, not individual owners. Id. So,
he contends, the “Agency’s determination should specifically not
extend” to him. Id. at 9. He is incorrect. Under the plain language
of the governing statute, “[t]he disqualification period . . . shall
continue in effect as to the person or persons who sell or otherwise
transfer ownership of the retail food store or wholesale food con-
cern . . . .” 7 U.S.C. § 2021(e)(1). Miceli has admitted that he sold
BFMM some “four years ago.” Doc. 27-3 at 4. So BFMM’s
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4 Opinion of the Court 22-11754
permanent disqualification “continue[s] in effect as to [Miceli,] who
s[old]” the store. There is thus no reason to consider the matter
moot simply because Miceli is no longer involved.
Second, and in the alternative, Miceli asserts that if he is per-
manently disqualified, then the case is not moot because he would
like to be able to open another store that accepts SNAP benefits in
the future. But the caselaw is clear that absent any “definite plans
to reopen [his business] as a regulated entity,” Miceli’s mere desire
to do so is insufficient to save his case from mootness. Munsell v.
Dep’t of Agric., 509 F.3d 572, 583 (D.C. Cir. 2007) (“No order from
this court is assured more than a speculative chance of giving any
relief to these appellants, because Munsell has no definite plans to
reopen [his business] as a regulated entity.”); cf. City News & Novelty,
Inc. v. City of Waukesha, 531 U.S. 278, 284 (2001) (observing that the
“speculation” that a “business ‘could again decide to operate’
. . . standing alone . . . did not shield the case from a mootness de-
termination” (quoting Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000)));
Board of License Comm’rs of Town of Tiverton v. Pastore, 469 U.S. 238,
240 (1985) (“‘Such speculative contingencies afford no basis for our
passing on the substantive issues the petitioner would have us de-
cide’ in the absence of ‘evidence that this is a prospect of immedi-
acy and reality.’” (alterations accepted) (quoting Hall v. Beals, 396
U.S. 45, 49 (1969) and Golden v. Zwickler, 394 U.S. 103, 109 (1969),
respectively)). Compare, e.g., White River Amusement Pub., Inc. v. Town
of Hartford, 481 F.3d 163, 168 (2d Cir. 2007) (holding that a case was
not moot when a business’s premises had been “destroyed by a fire”
but the “Corporation ha[d] a renewable lease on the premises,
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22-11754 Opinion of the Court 5
which it d[id] not intend to terminate”); Southern Or. Barter Fair v.
Jackson Cnty., Or., 372 F.3d 1128, 1134 (9th Cir. 2004) (holding that a
case was not moot because a business had “attempt[ed] to raise
funds” and sought a site for gathering after it had lost its corporate
status years earlier).
Finally, Miceli states that he continues to suffer two ongoing
injuries that sustain a live controversy: (1) the threat of future fi-
nancial sanctions based on BFMM’s past SNAP violations and (2)
so-called “name and shame” sanctions, whereby the agency could
publish his name as a store owner who has been disqualified from
receiving SNAP benefits. Miceli is correct that the agency has the
authority to do either of those things. See, e.g., 7 U.S.C. § 2021(e);
7 C.F.R. § 278.6(f )(3) (“At any time after a civil money penalty im-
posed . . . has become final . . . the [FNS] may request the Attorney
General institute a civil action to collect the penalty from the per-
son or persons subject to the penalty . . . .”); Doc. 24-1 at 122 (ex-
plaining the agency’s statement that it “may disclose information
to the public when a retailer has been disqualified or otherwise
sanctioned for violations after the time for any appeals has ex-
pired”). But Miceli has proffered no evidence that there is any “ac-
tual or imminent” risk―one that is more than “conjectural or hy-
pothetical”―that either is likely to occur. Lujan v. Defenders of Wild-
life, 504 U.S. 555, 560 (1992) (internal quotations omitted). He has
shown no “history of past enforcement,” and the agency’s mere
acknowledgement of its authority to take one or both of those
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6 Opinion of the Court 22-11754
actions does not suffice to create a live case or controversy. Cf. Su-
san B. Anthony List v. Driehaus, 573 U.S. 149, 164 (2014). 1
II
For these reasons, this appeal is DISMISSED for lack of sub-
ject-matter jurisdiction.
1 Miceli also asserts that even if the case is moot, it qualifies under the “capable
of repetition, yet evading review” exception. We disagree. In support of his
argument, Miceli states that in practice, the agency simply refuses to process
applications from store owners who have been permanently disqualified.
That practice, he says, will deprive him of the ability to obtain administrative
and judicial review of any future application denial. But as evidence of the
agency’s practice, Miceli offers only a single anonymized letter that his lawyer
received in another case. The Supreme Court has been clear that the capable-
of-repetition-yet-evading-review exception entails two requirements: “(1) the
challenged action was in its duration too short to be fully litigated prior to its
cessation or expiration, and (2) there was a reasonable expectation that the
same complaining party would be subjected to the same action again.” Wein-
stein v. Bradford, 423 U.S. 147, 149 (1975). As this appeal makes clear, Miceli’s
permanent disqualification is not too short to be fully litigated. And we do not
think that a single anonymized letter provides a sufficient basis to conclude
that Miceli will be precluded from judicial review during any future attempt
to open a store.